Gujarat High Court
Rakshit Natwarlal Patel vs Tushar Natwarlal Patel on 29 September, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
O/OJMCA/155/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (OJ) NO. 155 of 2015
In CIVIL APPLICATION (OJ) NO. 371 of 2015
In TESTAMENTARY PETITION NO. 1 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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RAKSHIT NATWARLAL PATEL....Applicant(s)
Versus
TUSHAR NATWARLAL PATEL....Respondent(s)
==============================================================
Appearance:
MR.VINAYAK R RAVAL, ADVOCATE for the Applicant(s) No. 1
MR RUSHABH R SHAH, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 29/09/2015
ORAL JUDGMENT
1. The applicant - original petitioner has filed this application for review of judgment dated 24.07.2015 rendered by this Court in Civil Application (O.J.) No.371 of 2015 with Civil Application (O.J.) Page 1 of 75 HC-NIC Page 1 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT No.669 of 2014 in Testamentary Petition No.1 of 2014.
2. Heard learned advocate Mr. V.S.Desai with learned advocate Mr. Vinayak R. Raval for the applicant - original petitioner and learned advocate Mr. Mehul S. Shah with learned advocate Mr. Rushab R. Shah for the citee/objector.
3. This Court has passed a detailed judgment dated 24.07.2015, whereby the arguments canvassed by learned advocate appearing for the original petitioner and learned advocate for the objector were considered by this Court in detail and thereafter this Court has allowed OJCA No.371 of 2015 filed by the objector and thereby Registry is directed to send the complete record of Testamentary Petition No.1 of 2014 along with OJCA No. 669 of 2014 filed by the petitioner to District Judge, Vadodara for disposal of the same in accordance with law from the stage at which it is pending in this Court. Against the said judgment, the applicant - original petitioner has filed this review application. During the course of hearing, learned advocate Mr. Desai appearing for the applicant has raised the following main contentions:
(a) that though this Court has held that this Court is having concurrent jurisdiction under Page 2 of 75 HC-NIC Page 2 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT Section 300(1) of Indian Succession Act, this Court has wrongly transferred the proceedings to the District Judge.
(b) that this Court has not stated that under which provision of law this Court has transferred the proceedings to the District Judge.
(c) that the proceedings can be transferred under Section 24 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code' for short). However, from the list of sitting which was in force when the Testamentary Petition and aforesaid Civil Applications were heard and the judgment was pronounced in July 2015, it is revealed that the Hon'ble Acting Chief Justice had allotted the work of transfer of proceedings under Section 24 of the Code to Court No.5 (Court of Hon'ble Mr. Justice Akil Kureshi). Thus, this Court was not empowered to transfer the proceedings from this Court to District Judge, Vadodara.
(d) provisions of the Code are not applicable to the Special Act i.e. Indian Succession Act and therefore this Court has wrongly placed reliance upon Section 15 of the Code. The District Court cannot be said to be the Court Page 3 of 75 HC-NIC Page 3 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT of lowest grade and therefore proceedings cannot be transferred to the District Court.
(e) section 4 of the Code was relied upon by learned advocate of the petitioner at the time of argument which provides that:
"4. Savings.
(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time in force. (2) In particular and without prejudice to the generality of the proposition contained in sub-section (1) nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land."
However, in the judgment dated 24.07.2015, there is no reference with regard to the said provision.
(f) The Testamentary Petition, which is filed by the petitioner, is different from suit and petitioner - applicant being a 'dominus litis' he can choose his forum for institution of the petition when District Page 4 of 75 HC-NIC Page 4 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT Judge and High Court both have concurrent jurisdiction. Thus, the applicant has chosen to file the Testamentary Petition before this Court.
(g) Petition for grant of probate of the Will of the testamentary estate of which jurisdictionally jantri - value is above Rs.1 crore, and therefore even if testamentary petition is filed before District Judge, the appeal against the order passed by the District Judge would lie before the Division Bench of this Court and if the testamentary petition is filed before the Single Judge of this Court then also Letters Patent Appeal would lie before the Division Bench of this Court. Thus, when the applicant - petitioner has selected the forum for filing the testamentary petition, this Court cannot transfer the petition to the District Judge.
(h) Reliance was placed on Section 268 read with Section 295 of Indian Succession Act, which read as under:
"268. Proceedings of District Judge's Court in relation to probate and administration.-- The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided; be regulated, so far as the circumstances of the case permit, by the Code of Civil Page 5 of 75 HC-NIC Page 5 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT Procedure, 1908 (5 of 1908).
295. Procedure in contentious cases.--In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant."
Thus, as per the aforesaid provisions, merely because citations were issued by this Court to three persons including the objector, it does not mean that the objector is having right to take objection in the present proceedings. Citee is having right to come and see the proceedings but he cannot participate in the proceedings.
(i) this Court has to decide whether the objector is having caveatable interest or not and the case is contentious or not. This Court has to give the findings and thereafter the proceedings shall take the form of a regular suit according to the provisions of the Code in which the petitioner for probate shall be the plaintiff and the person who has appeared to oppose the grant shall be the defendant. In the present case, objector is not having Page 6 of 75 HC-NIC Page 6 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT caveatable interest. In spite of that, this Court has considered the objection taken by the objector with regard to jurisdiction of this Court and thereby this Court has committed an error.
(j) Civil Application (O.J.) No.371 of 2015, which is filed later in point of time by the objector, has been decided first, whereas Civil Application (O.J.) No. 669 of 2014, which is filed by the applicant prior in point of time, has not been considered. The said application was filed with a prayer that the objector's opposition dated 28.04.2014 be discharged. However, the said application is not decided and the same is transferred along with testamentary petition to the District Judge, Vadodara.
(k) this Court and the District Judge both are having concurrent jurisdiction and therefore High Court cannot transfer the proceedings to District Judge nor the District Judge can transfer the proceedings to High Court. This Court, in the aforesaid judgment, in some place, has used the word District Court and at some place used the word District Judge.
(l) there is no averment by citee in the
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objection that he is having interest in the estate of the testator. In spite of that, this Court has transferred the proceedings to District Judge after considering the objection which is ultra vires and coram non-judice as per roster.
(m) section 141 of the Code does not apply.
(n) once the petition is admitted by this Court and the said order was not challenged by the citee/objector before the higher forum, he cannot raise objection about the jurisdiction of this Court.
(o) testamentary petition is not a plaint under Order VII Rule 1 of the Code. In the testamentary petition, petitioner is not claiming against anybody. Testator has executed the will.
(p) there is a distinction between summons as provided under Order V, Rule 1 of the Code and the citation mentioned in Section 283 of Indian Succession Act.
(q) in OJCA 371 of 2015, the citee/objector has not claimed relief with regard to transfer of the proceedings but he has prayed for Page 8 of 75 HC-NIC Page 8 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT dismissal of the testamentary petition for want of jurisdiction and also requested to decide the issue of jurisdiction as preliminary issue. However, this Court has granted the relief which was not prayed for.
(r) This Court has wrongly placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Krishna Kumar Birla V/s Rajendra Singh Lodha, reported in (2008) 4 SCC 300.
(s) This Court has also wrongly relied upon the decision rendered by Punjab & Haryana High Court in the case of Joginder Singh and others v. Balwinder Kaur and others, reported in 2012 CJ (P&H) 3250. The said decision is per incurium.
(t) This Court framed the issue in para 9 of the judgment at page 61, out of which first issue was partly decided and the second part of the first issue was decided prematurely, whereas second issue was decided in favour of the petitioner and this Court held that this Court is having concurrent jurisdiction. In spite of that, the proceedings are transferred to the District Judge.
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(u) The Appellate Forum was fixed when the
testamentary petition was filed and therefore the same cannot be changed by an order of this Court by transferring the proceedings. If the proceedings are transferred to District Judge and the same is decided by the District Judge, the Appellate Court would be the Single Judge of High Court which is not permissible.
(v) Probate is representative title and not ownership title.
4. On the basis of the aforesaid contentions raised by the learned advocate for the applicant
- original petitioner, he has submitted that the aforesaid are the apparent errors committed by this Court while passing the impugned judgment dated 24.07.2015, which are on the face of the record and therefore this application is filed for correction of the said apparent errors. Hence, this Court may allow this application and review the judgment dated 24.07.2015.
5. Learned advocate for the applicant, in support of the aforesaid contentions and submissions, placed reliance upon the decision of the Hon'ble Supreme Court in the case of Janardhan Reddy and Others v. The State, reported Page 10 of 75 HC-NIC Page 10 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT in AIR 1951 SC 124, and more particularly the observations made in para 6 and 9, which read as under:
"6. The question for consideration is whether on the facts of the present case the Supreme Court can grant special leave to appeal from a judgment, sentence or order which was passed and made by the Hyderabad High Court before 26th January, 1950. The important fact to be borne in mind is that the Hyderabad courts were not courts within the. territory of India when they pronounced their judgments on the 12th, 13th and 14th of December, 1949. It is argued on behalf of the petitioners that a narrow construction will take away the valuable rights of appeal which had existed in persons in the position of petitioners when the Constitution of India was directed by H.E.H. the Nizam by his firman to be applicable to the Hyderabad State on the 26th of January, 1950, it should be held that as no substantive right was provided in the Constitution separately, the words of article 135 were wide enough to give such right to the petitioners. On the other hand, it was then argued by the learned Attorney General that every legislation is primarily prospective and not retrospective. A right of appeal has to be given specifically by a statute and it is not merely a procedural right. If therefore there exists no right of appeal under the Constitution such right cannot be inferentially held to come into being on the application of the Constitution to the Hyderabad State. For this, reliance was placed on the decision of the Privy Council in Delhi Cloth and General Mills Ltd. v. Income Tax Commissioner, Delhi, 54 I.A. 421: (A.I.R.(14) 1927 P.C.242) and Page 11 of 75 HC-NIC Page 11 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT Colonial Sugar Refining Co. Ltd. v. Irving, (1905) A. C. 369: (74 L.J.P.C.
77).
"9. In our opinion this Court has therefore no jurisdiction to entertain these petitions for special leave to appeal against such judgments of the High Court of Hyderabad under Article 136 of the Constitution. Cases like those of the petitioners are thus not covered by articles 134, 135 or 136 and therefore the Supreme Court in the present state of the legislation is unable to 949 render any assistance to them. An omission to provide for such relief in the Constitution cannot be remedied by the Supreme Court and assumption of jurisdiction which is not warranted by the clear words of articles 134, 135 or 136 will be tantamount to making legislation by the Supreme Court which it is never its function to do."
5.1. Mr. Desai, thereafter, has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Messrs. Hoosein Kasam Dada (India) Ltd. v. The State of M.P. and others, reported in AIR 1953 SC 221(1) and more particularly para 8 of the said judgment.
"8. The, above decisions quite firmly establish and our decisions in Janardan Reddy v. The State, AIR 1951 SC J24 (O) and in Ganpat Rai v. Agarwal Chamber of Commerce Ltd., AIR 1952 SC 409 (P), uphold the principle that a right of appeal is not merely a matter of procedure. It is matter of substantive right. This right of appeal from the decision of an .inferior Page 12 of 75 HC-NIC Page 12 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior court. In the language of Jenkins C.J. in Nana bin Aba v. Shaik bin Andu (supra) to disturb an existing right of appeal is not a mere alteration in procedure. Such a vested right cannot be taken away except by express enactment or necessary intendment. An [intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication."
5.2. Learned advocate for the applicant also placed reliance upon the decision of this Court in the case of State of Gujarat v. Gordhandas Keshavji Gandhi and others, reported in AIR 1962 Guj 128, and more particularly para 138 to 140 of the said decision, which are as under:
"138. I must next consider whether apart from Section 87 there is any principle of law on which decisions given by the High Court of Bombay prior to the appointed day can be regarded as binding on this High Court. It was contended by the learned Advocate General relying on the decision of the Full Bench of the Andhra Pradesh High Court in (S) AIR 1955 Andhra 87 (FB) (supra), that the High Court of Bombay prior to the appointed day was a Court of cc-ordinate jurisdiction with this High Court and that the decisions given by the High Court of Bombay prior to the appointed day were, therefore, binding on this High Court on the well-known and Page 13 of 75 HC-NIC Page 13 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT well-established principle of judicial comity which requires that a Count should regard itself bound by the decisions of another of co-ordinate jurisdiction. The same contention was advanced before the previous Full Bench by the learned Advocate General who then appeared on behalf of She Union of India. But S. T. Desai, C. J., as he then was and my brother Miabhoy and myself, who constituted the Full Bench, found some difficulty in accepting the contention.
We, however, did not examine the validity of the contention in any detail, for we were inclined to accept the construction of Section 87 put forward by the learned Advocate General on behalf of the Union of India which included judicial decisions within the scope and ambit of that section. The contention has been fully debated before us this time and after giving my most anxious and careful consideration to the arguments advanced on all sides, I am of the opinion that the view which I was then inclined to entertain was the correct view and that the High Court of Bombay prior to the appointed day cannot be regarded as a Court of co-ordinate jurisdiction with this High, Court.
139. Considerable argument was advanced before us as to when two Courts can be said to be Courts of co-ordinate jurisdiction. Various attempts were made to formulate a precise definition which would, indicate with certainty and definiteness the circumstances under which two Courts can be said to be Courts of co- ordinate jurisdiction. But in my opinion all those attempts were futile. I find that it is not possible to formulate any precise test for determining when two Courts can be said to be Courts of co-
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ordinate jurisdiction. All that the Court can do is to apply certain tests by reference to certain features which must exist if two Courts are to be Courts of co-ordinate jurisdiction, and declare, if any one of those tests is not satisfied, that the two Courts are not Courts of co- ordinate jurisdiction. One of the tests is whether the two Courts are Courts of equal rank and equal status. That this characteristic of equal rank and equal status should be present is apparent from the word "co-ordinate" The dictionary meaning of the word "co-ordinate" as stated in Webster's New international Dictionary of the English language, 2nd Edition, at page 588, is "equal in, or in the same rank or order; not subordinate".
"One that is co-ordinate" is described as "one of equal rank, authority or importance with another". In Murray's English Dictionary, Volume 2, the meaning of the word ''co-ordinate" is given as "of the same order; equal in rank, degree or importance (with); opposed to subordinate". The dictionary meaning thus clearly brings out the sameness of rank and status as an important characteristic which must exist before two Courts can be said to be Courts of co-ordinate jurisdiction. The same characteristic is also emphasized by Sir Frederick Pollock in his First Book of Jurisprudence, 5th Edition, at page 324 where he has referred to decisions of "co-ordinate authority" as decisions of "Courts of equal rank and exercising the same jurisdictions". This statement of Sir Frederick Pollock also emphasizes another important characteristic which must be present in order that two Courts can be said to be Courts of co-ordinate jurisdiction. That characteristic is that the two Courts must exercise the same jurisdiction. The two Page 15 of 75 HC-NIC Page 15 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT characteristics of co-ordinate jurisdiction thus are that the two Courts should be of equal rank and equal status and should exercise the same jurisdiction. If cither of these characteristics is absent, the two Courts cannot be said to be Courts of co-ordinate jurisdiction. The first characteristic was accepted by the full Bench decision of the Andhra Pradesh High Court in (S) AIR 1955 Andhra 87 (FB) (supra), as a valid test for ascertaining whether two Courts are Courts of co-
ordinate jurisdiction but so far as the second characteristic is concerned, the Full Bench decision of the Andhra Pradesh High Court did net accept it in the form suggested by Sir Frederick Pollock but formulated ft in words which enlarge the area of the concept of co-ordinate jurisdiction. The Full Bench decision of the Andhra Pradesh High Court laid down as the second characteristic that two Courts should exercise similar land not same jurisdiction before they can be regarded as Courts of co-ordinate jurisdiction. The test which was thus formulated by the Full Bench decision of the Andhra Pradesh High Court for ascertaining whether two Courts are Courts of co-ordinate jurisdiction was: "Whether the two Courts are of equal rank and status or of equal authority and exercise similar jurisdiction?". I on my part find it difficult to accept this test as a valid test for determining Whether two Courts are Courts of co-ordinate jurisdiction. According to this test it is not necessary that the two Courts should exercise the same jurisdiction but it would be enough if the Jurisdiction exercised by the two Courts is similar. This would considerably widen the scope of the concept of co-ordinate jurisdiction and bring within the concept many Courts which are admittedly not Courts of co-
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ordinate jurisdiction. Take for example the High Court of Madras and the High Court of Calcutta. Both these Courts are Courts of equal rank and status and they undoubtedly exercise similar jurisdiction in the respective territories for which they are constituted High Courts. The jurisdiction exercised by the High Court of Madras in relation to the territories of the State of Madras is similar to the jurisdiction exercised by the High Court of Calcutta in relation to the territories of the State of West Bengal. If therefore, the test formulated by the Full Bench decision of the Andhra Pradesh High Court is correct, the High Court of Madras and the High Court of calcutta would be Courts of co-ordinate jurisdiction and if that is so, the decisions of either High Court would be binding on the other. This, however, is admittedly not the position and it must, therefore, be concluded that the premise itself is incorrect and that similarity of jurisdiction does not afford a test for determining whether two Courts are Courts of co-ordinate jurisdiction. It in the sameness of jurisdiction which provides the real test and forms the essential characteristic of co-ordinate jurisdiction. I must, therefore, apply this test and consider whether this High Court enjoyed the same rank and status as the High Court of Bombay prior to the appointed day and the jurisdiction exercised by this High Court is the same as that exercised by the High Court of Bombay prior to the appointed day.
140. Before, however, I consider this question, I must refer to a contention which was urged in the course of the arguments and it was that the continued simultaneous existence of two Courts is Page 17 of 75 HC-NIC Page 17 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT necessary before they can be considered Courts of co-ordinate jurisdiction. The contention was that two Courts cannot be said to be Courts of co-ordinate jurisdiction unless they are functioning at the Gama time; if one Court has ceased to exist it cannot be regarded is a Court Of co-ordinate jurisdiction with another which is functioning. The contention sought to equate co-ordinate jurisdiction with concurrent or simultaneous jurisdiction. The contention is, in my opinion, not well founded, and cannot be supported either on principle or on authority. I have already referred to the dictionary meaning of the word "co- ordinate" and I have also quoted the relevant statement from Sir Frederick Pollock's First Book of Jurisprudence and it will be clear from the aforesaid discussion that the connotation of the word "co-ordinate" is not the same as that of the Words "concurrent" or "simultaneous". The concept of co-ordinate jurisdiction and the concept of concurrent or simultaneous jurisdiction are totally different concepts touching the question of jurisdiction at different angles. The concept of concurrent or simultaneous jurisdiction has reference to the point of time at which jurisdiction is exercised while the concept of co-ordinaite Jurisdiction has reference to the sameness of quantity or degree. Simultaneity or co- existence is not a necessary ingredient of co-ordination; co-ordination has no reference to point of time and can take in successive acts of the same status or level. The jurisdiction of two Courts may, therefore, be concurrent or simultaneous without being necessarily co-ordinate and similarly the jurisdiction of two Courts may be co-ordinate without being necessarily concurrent or simultaneous. It Page 18 of 75 HC-NIC Page 18 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT would not, therefore, be right to equate co-ordinate jurisdiction with, concurrent or simultaneous jurisdiction. It is not necessary that two Courts should be simultaneously in existence in order that they can be regarded as Courts of co- ordinate jurisdiction. Even a Court which has ceased to exist can be said to be a Court co-ordinate in jurisdiction with an existing Court. Any other view would lead to a rather absurd and inconsistent result. Suppose there are two Courts of the same rank and status functioning within the same territory and possessing the same jurisdiction. These Courts would undisputedly be Courts of co-ordinate jurisdiction and the decisions of the one will be binding on the other. Now suppose one of these Courts is abolished, would the decisions of the abolished Court cease to bind the other Court which continues to exist? Until abolition the decisions of the abolished Court bound the other Court as a Court of co-ordinate jurisdiction. But would the binding, effect of those decisions cease merely because the Count which gave those decisions is abolished? If that were so, the result would be that the decisions of the abolished Court would bind the other Court upto a certain dale and would thereafter cease to bind that Court. This would be a strange result which apart from being irrational and illogical, would be inconsistent with the avowed purpose of the doctrine of judicial precedents. How would uniformity, continuity and certainty in the administration of justice be advanced by regarding the decisions of the abolished Court as binding on the other Court upto a certain time and thereafter treating them as without any binding authority on that Court? It is obvious that the decisions of the abolished Court must continue to bind Page 19 of 75 HC-NIC Page 19 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT the other Court even after the abolition in the same manner as they bound the other Court prior to the abolition and the only ground on which this conclusion can be founded is that the abolished Count was a Court co-ordinate in jurisdiction with the other Court. If it could be said of the abolished Court prior to the abolition that it was a Court of co-ordinate jurisdiction with the other Court, I fail to see what difference could the abolition make to the relative position of the two Courts. If the constant of the jurisdiction of the two Courts was the same prior to the abolition and that is why they were regarded as Courts of co- ordinate jurisdiction, the abolition could not affect the content of the jurisdiction of either Court and if the abolished Court was a Court of co-ordinate jurisdiction with the ether Court prior to the abolition, it would equally be a Court co- ordinate in jurisdiction with the other Court after the abolition. It is not the exercise of jurisdiction at the same point of time that is determinative of the matter but it is the sameness of the content of jurisdiction, whether exercised at one point of time or at different points of time, that affords the true test for determination of the question whether two Courts are Courts of co-ordinate jurisdiction. But the matter does not rest merely on principle. There are authorities both of the English Courts and of the Courts in India in which the view has been taken that the simultaneous continued existence of two Courts is not a necessary concomitant of co-ordinate jurisdiction and that even a Court which has ceased to exist can be regarded as a Court co- ordinate in jurisdiction with an existing Court. Turning first to the English authorities, I must refer to the decision Page 20 of 75 HC-NIC Page 20 of 75 Created On Fri Oct 02 01:27:43 IST 2015 O/OJMCA/155/2015 JUDGMENT of the Court of Appeal in (1895) I Ch. 51. That was a decision given by the Court pf Appeal on 12th November 1894 in an appeal from, the Chancery Division of the High Court. The Division of the Court of Appeal which gave the decision consisted of three very eminent Lord Justices Lord Herschell, L. C., Lord Justice Lindley and Lord Justice A. L. Smith. The decision of the Court of Appeal in Chancery in (1858) 44 E P 1126 was cited before the Court of Appeal as a decision directly in favour of the respondent and if that decision was binding on the Court of Appeal, the appellant was bound to fail. The Court of Appeal regarded that decision as binding on itself even though if was given by the Court of Appeal it Chancery and the ground on which it was regarded as binding was that the Court of Appeal in Chancery was a Court co-ordinate in jurisdiction with the Court of Appeal. Lord Herschell, L. C., observed:
"We cannot overrule C1858) 44 ER 1126 for that was the decision of a Court co- ordinate in jurisdiction with ourselves:
all We can do, therefore, is to dismiss this appeal".
and Lord Justice Lindley and Lord Justice A. L. Smith concurred in these observations. The Court of Appeal thus regarded the Court of Appeal in Chancery as a Court of co-ordinate jurisdiction with the Court of Appeal even though the Court of Appeal in Chancery had ceased to exist by reason of the Supreme Court of Judicature Act, 1873 The Judicial Committee of the Privy Council in an appeal from the Supreme Court of New Brunswick also regarded the decision of the Court of Exchequer Chamber in Merchant Shipping Co. v. Armitage, (1873) 9 Q. B. 99 as an authority binding the English Page 21 of 75 HC-NIC Page 21 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT Courts upto and including the Court of Appeal (vide Maine and New Brunswick Electrical Power Co. v. Hart, 1939 A. C.
631). Of course the Judicial Committee of the Privy Council did not state that the decision of the Court of Exchequer Chamber which, had coated to exist by reason of the Supreme Court of Judicature Act, 1873, was binding on the Count of Appeal because the Court of Exchequer Chamber was a Court co-ordinate in jurisdiction with the Court of Appeal. But having regard to the decision of the Court of Appeal in (1895) 1 Ch. 51 (supra), ore can safely assume that that must have been the ground on which the Judicial Committee of the Privy Council regarded the decision of the Court of Exchequer Chamber as binding on the Court of Appeal.
The decision of the Court of Criminal Appeal in (1914) 2 K. B. 209 may also be referred to in this connection though it is not clear from the decision whether in treating the decision of the Court for the consideration of the Crown Cases Reserved in (1896) 1 Q. B. 309, as binding on the Court of Criminal Appeal, Lord. Reading, C. J., proceeded upon the ground that the Court for the consideration of the Crown Cases Reserved which ceased to exist as a result of Section 20(4) of the Criminal Appeal Act, 1907, was a Court co-ordinate in jurisdiction With the Court of Criminal Appeal. This must, however, emerge very clearly from this decision that the decisions of the Court for the Consideration, of the Crown Cases Reserved are regarded as binding on the Court of Criminal Appeal even though the Court for the Consideration of the Grown Cases Reserved ceased to exist and its place was taken by the Court of Criminal Appeal by virtue of the provisions of Criminal Page 22 of 75 HC-NIC Page 22 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT Appeal Act, 1907. Apart from these decisions of the English Courts there are at least two decisions of the High Courts in India which support the view that Courts of co-ordinate jurisdiction need not be Courts of concurrent or simultaneous jurisdiction. This very question are so before the Full Bench of the Andhra Pradesh High Court in (S) AIR 1955 Andhra 87 (supra) and the Full Bench negatived the contention that co-ordinate jurisdiction connotes the same idea as concurrent Jurisdiction or simultaneous jurisdiction and held that in order to be Courts of co-ordinate jurisdiction it is not necessary that the Courts should be Courts of concurrent jurisdiction or simultaneous jurisdiction and that in a given case even a successor Court can be a co-ordinate Court with the predecessor Court. The Rangoon High Court in AIR 1927 Rang 4 (supra) did not directly decide this question but it is implicit in the decision of the Rangoon High Court that according to the hangoon High Court the continued simultaneous existence at two Courts was not necessary to constitute them Courts of co-ordinate jurisdiction. In that case the question was whether the decisions of the Old Chief Court of Lower Burma should be regarded as binding on the High Court of Rangoon. The Full Bench of the Rangoon High Court proceeded to consider whether the Old Chief Court of Lower Burma could be regarded as a Court of co-ordinate jurisdiction with the Rangoon High Court and came to the conclusion that it was net a Court of co- ordinate jurisdiction because it was not of the same rank and status as the High Court of Rangoon and besides, its territorial jurisdiction was narrower than that of the High Court of Rangoon. The Full Bench of the High Court of Rangoon Page 23 of 75 HC-NIC Page 23 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT did not hold that the Old Chief Court of Lower Burma could not be regarded as a Court of co-ordinate jurisdiction with the High Court of Rangoon because the two Courts were net simultaneously in existence. The Full Bench of the Rangoon High Court clearly understood the concept of co-ordinate jurisdiction in the sense accepted by me, for otherwise, the entire discussion in the various judgments of the Full Bench would have been unnecessary and the Full Bench could have easily disposed of the matter on the basis that the High Court of Rangoon could not be a Court of co-ordinate jurisdiction with the Chief Court of Lower Burma which had ceased to exist. I am, therefore, of the opinion that two Courts need not exist simultaneously in order to be Courts of co-ordinate jurisdiction and that even if one of the Courts has ceased to exist, it can be regarded as a Court co-ordinate in jurisdiction with the existing Court provided the other conditions are satisfied."
5.3. Learned advocate Mr. Desai, thereafter, has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Girdhari Lal Gupta v. D.N.Mehta, reported in AIR 1971 SC 2162 and more particularly para 1, 16 and 17, which are as under:
"1. We disposed of Criminal Appeals Nos. 211 and 212 of 1959 by our judgment dated August 18, 1970, whereby the appeals of Girdharilal Gupta, and Bhagwandeo Tewari against their convictions were dismissed. Girdharilal Gupta put in this review Page 24 of 75 HC-NIC Page 24 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT petition stating that the counsel had omitted to bring to our notice the provisions of Section 23C(2) of the Foreign Exchange Regulation Act, 1947- hereinafter referred to as the Act-which has a vital bearing on-the case. The judgment in Criminal Appeal No. 211 of 1959 has, therefore, been re-opened. We may mention that Bhagwandeo Tiwari has not filed a review petition against his conviction, upheld by this Court.
16. The learned Counsel for the respondent State urges that this is not a case fit for review because it is only a case of mistaken judgment. But we are unable to agree with this submission because at the time of the arguments our attention was not drawn specifically to Sub-section 23C(2) and the light it throws on the interpretation of Sub-section (1).
17. In the result the review petition is partly allowed and the judgment of this Court in Criminal Appeal No. 211 of 1969 modified to the extent that the sentence of six months' rigorous imprisonment imposed on Girdharilal is set aside. The sentence of fine of Rs. 2,000/-shall, however, stand."
5.4. Learned advocate Mr. Desai has also placed reliance upon the decision of the Hon'ble Supreme Court rendered in the case of State of Gujarat & Others v. M/s. Prabhat Solvent Extraction Industries Private Limited, reported in (1982) 1 SCC 624, wherein the Hon'ble Supreme Court observed and held as under:
Page 25 of 75HC-NIC Page 25 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT "Heard counsel for the parties. It appears that at the time when we dismissed the special leave petitions, our attention was not drawn to the fact that in Special Leave Petition (Civil) No.3438 leave had already been granted where identical point was involved. Civil Appeal No.46(N) of 1975 in ready for hearing and if we do not allow the review petitions, the result will be that there will be possibility of two contradictory judgments coming into existence. In view of these circumstances, therefore, we allow the review petitions subject to the payment of one set of cost of Rs.2000 to the respondents. The order dismissing the special leave petitions is set aside and all the special leave petitions are granted subject to usual conditions but the cost of the appeals arising out of the special leave will be borne by the appellants in any event. As regards stay, there will be stay of the operation of the judgment under appeal provided that the appellants shall refund the amount if they fail in the appeals with interest at the rate of 12 per cent per annum within a month from the pronouncement of the judgment. Let these appeals be heard along with Civil Appeal No.46 of 1975. Printing of appeal record and statements of case dispensed with. Appeals to be heard on S.L.P. Paper-books with additional documents to be filed by the parties within a month. Liberty to mention."
5.5. Learned advocate for the applicant, thereafter, has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Sheonandan Paswan v. State of Bihar & Others, reported in (1987) 1 SCC 288, and more Page 26 of 75 HC-NIC Page 26 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT particularly para 10 to 12, which read as under:
"10. Since the High Court rejected the Revision Application in 736 limine, Sheo Nandan Paswan filed the present appeal after obtaining special leave from this Court. The appeal was heard by a Bench of three Judges consisting of Tulzapurkar, Baharul Islam and R.B. Misra, JJ. There was a difference of opinion amongst the Judges in regard to the decision of the appeal. Tulzapurkar, J. took the view that a prima facie case was clearly made out against Dr. Jagannath Misra and others and the ground urged on behalf of the State Govern- ment that there was not sufficient evidence which could lead to the conviction of Dr. Jagannath Misra and others, was not well founded. The learned Judge took this view on a detailed consideration of the material which was on record and held that the withdrawal of the prosecution was not justified either on merits or in law and being illegal had to be quashed. Baharul Islam and R.B. Misra, JJ., on the other hand, took the view that the entire investigation was vitiated and no person could be convicted on the basis of evidence procured as a result of such investigation and the withdrawal of the prosecution was, therefore, justified. Having regard to the majority judgment of Baharul Islam and R.B. Misra, JJ., the appeal was dismissed.
11. Sheonandan Paswan thereupon filed a Review application before this Court. But on the date when the Review application was filed, Baharul Islam, J. had already resigned his office as a Judge of this Court. Now, under the Rules of this Court the Review application had to be heard by Page 27 of 75 HC-NIC Page 27 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT the same Bench but since Baharul Islam, J. had ceased to be a Judge, A.N. Sen, J. was asked to join Tulzapurkar and R.B. Misra, JJ. and thus the Bench consisting of Tulzapurkar, A.N. Sen and R.B. Misra, JJ. heard the Review application. The judgment of the Review Bench was delivered by A.N. Sen, J on 22nd August 1983 and after setting out the rival arguments the learned Judge observed:
"Applying the well-settled principles govern- ing a review petition and giving my very anxious and careful consideration to the facts and circumstances of this case, I have come to the conclusion that the review petition should be admitted and the appeal should be re-heard. I have deliberately refrained from stating my reasons and the various grounds which have led me to this conclusion. Any decision of the facts and circumstances which, to my mind, constitute errors apparent on the face of the record and my reasons for the finding that these facts and circumstances constitute errors apparent on the face of the record resulting in the success of the review petition, may have the possibility of 737 prejudicing the appeal which as a result of my decision has to be re-heard."
and in the result the learned Judge passed an order admit- ting the review petition and directing re-hearing of the appeal. But since prior to the date of this judgment the case of Mohd. Mumtaz v. Smt. Nandini Satpathy, [1983] 4 SCC 104 had already been referred to a Bench of five Judges, the learned Judge directed that the present appeal should be re-heard Page 28 of 75 HC-NIC Page 28 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT immediately after Nandini Satpathy's case. That is how the present appeal has now come before this Bench of five Judges.
12. There was one contention of a preliminary nature advanced by Mr. Nariman on behalf of Dr. Jagannath Misra and that contention was that on a proper reading of the order on the Review Petition made by A.N. Sen, J. it was clear that the Review Bench did not exercise the power of review and set aside the order made by the Original Bench. The argument was that the order made by the Original Bench stood un-
quashed and unreserved and it was
therefore not competent to the
Constitution Bench to rehear the appeal on merits as if the order of the Original Bench did not exist. It was also urged by Mr. Nariman on behalf of Dr. Jagannath Misra that the order made by the Review Bench was not legal and valid since it was a non-speaking order which did not contain any reasons why the order of the Original Bench should be re- viewed. This contention was of course not strongly pressed by Mr. Nariman but in any event we do not think that it has any substance. It is undoubtedly true that the order of the Review Bench did not in so many terms set aside the order of the Original Bench and used a rather unhappy expression, namely, "I ...... admit the Review Petition". But it is clear that when the Review Bench used the expression "I ..... admit the Review Petition" it plainly unequivocal- ly meant that it was allowing the Review Petition and set- ting aside the order of the Original Bench, otherwise it is difficult to understand how it could possibly "direct the reheating of the appeal". The appeal could be reheard only if the Review Petition was allowed and the Page 29 of 75 HC-NIC Page 29 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT order of the Original Bench was set aside and therefore obviously when the Review Bench directed rehearing of the appeal, it must by' necessary implication be held to have allowed the Review Petition and set aside the Order of the Original Bench. We cannot allow the true meaning and effect of the order of the Review Bench to be obfuscated by a slight ineptness of the language used by the Review Bench. We must look at the substance of the Order rather than its apparent form. We must therefore proceed on the basis that the Order of the Original Bench 738 was set aside and reheating of the appeal directed by the Review Bench.
5.6. He, thereafter, has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Nalini Navin Bhagwati v. Chandravadan M. Mehta, reported in (1997) 9 SCC 689 and more particularly observations made in para 6 and 7, which read as under:
"6. In other words, when probate or letter of administration was sought on the basis of a Will and there was a contentious issue in that behalf, the District Judge had to set it out in the form of a regular suit and the provisions of CPC would be applied in trying it as a suit. The propounder of the Will for probate or letter of administration would be a plaintiff and the person who opposes it shall be the defendant.
7. But when the grant of probate or letter of administration is sought to be Page 30 of 75 HC-NIC Page 30 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT revoked, it is not clear to what nomenclature would be ascribed to it and what procedure would be adopted for its disposal. Take for instance a situation when the suit is decreed ex parte. Order IX Rule 13 provides for making of an application to set aside the decree on proof of certain grounds ex parte decree gets set aside. Similarly when the suit was dismissed for default, under Order IX Rule 9 an application would be filed and on proof of the circumstances for absence, the order would be set aside and suit would get restored. Similarly, when probate or letter of administration is granted and it is sought to be revoked, Section 263 provides for the grounds on the basis of which it would be revoked. When the grounds are sought to be proved, the question is: whether such an application would be treated to be a suit? We are of the considered view that an application to revoke probate or letter of administration would be treated as miscellaneous application and may be disposed of on the fact situation in an appropriate case either summarily or after recording evidence. The application to revoke the probate or letter of administration thus may be disposed of by the District Judge either summarily or in a given situation where it requires proof of the facts by adduction of evidence by the parties by recording such evidence as is adduced by the parties. The burden will be on the applicant to prove the facts to revoke the probate or letter of administration and the respondent who obtained probate or letter of administration has to disprove the contentions of the applicant. In that situation, based upon the given facts situation, it will be for the Court to dispose it of either summarily or after Page 31 of 75 HC-NIC Page 31 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT giving opportunity to both the parties to adduce evidence and consideration thereof. Under these circumstances, it is not necessary that the application for revocation of the probate or letter of administration would be treated as a suit as a contemplated under Section 295 of the Act. If the contention of Shri Puri merits acceptance, then any proceedings under the application to revoke the probate or letter of administration should be treated as a suit: the applicant cannot prove the will and at the same time cannot contend that the will was not validly executed. Therefore, it would be self contradictory to adopt such a procedure. Accordingly, we are of the view that the procedure required under Section 295 need not be adopted for disposal of the application filed under Section 263 for revocation of the probate or the letter of administration. It would be treated as miscellaneous application and disposed of as indicated earlier according to the given fact situation. In fact, the Bombay High Court came to consider the question, not directly on this issue but in an analogous situation in Narbheram Jivaram Purohit vs. Jevallabh Harijivan, [Vol.XXXV(1933) BLR 998]. Therein, the learned single Judge had held that the proper procedure for revocation of probate granted by the High Court is by way of a petition filed in the testamentary and intestate jurisdiction of the Court, and not by way of suit in its Ordinary Original Civil Jurisdiction. In other words, the Court indicated that it need not be treated as a suit on the original side of the Court but it could be disposed of as an application independent of the suit. Thus we hold that the High Court was clearly in error in reaching the conclusion that it should be treated as a Page 32 of 75 HC-NIC Page 32 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT suit and disposed of under Section 295." 5.7. Learned advocate Mr. Desai, thereafter, relied upon the decision of the Hon'ble Supreme Court in the case of Sharda Devi v. State of Bihar, reported in (2002) 3 SCC 705 and more particularly para 5, 8 to 11, 14 and 15 of the said judgment, which are as under:
"5. When this matter reached hearing on 31st January, 2002 the following Order has been passed by this Court:
"One of the questions that arises for consideration in this case is as to whether Letters Patent Appeal was maintainable before the Letters Patent Bench against the judgment and decree of the learned Single Judge of the High Court passed in an appeal preferred under Section 54 of the Land Acquisition Act. In Civil Appeal Nos. 1663- 1968 of 1982 (Baljit Singh and Ors. etc. vs. State of Haryana & Ors.), a Bench of two Judges of this Court held that no Letters Patent Appeal is maintainable against the judgment of the learned Single Judge of the High Court whereas in the case of Basant Kumar vs. Union of India, reported in (1996) 11 SCC 542, a Bench of three Judges, without adverting to the decision in Baljit Singh & Ors. etc. vs. State of Haryana & Ors. (supra) held that such an appeal is maintainable.
We have heard learned counsel for the parties.
On a plain reading of Section 54 of the Land Acquisition Act, we are, prima facie, of the view that no Page 33 of 75 HC-NIC Page 33 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT Letters Patent Appeal is maintainable. However, since no reason has been assigned in the case of Basant Kumar vs. Union of India (supra) for holding that the Letters Paten Appeal is maintainable against the judgment of a Single Judge of the High Court passed in an appeal filed under Section 54 of the Act, we are of the view that this case requires to be decided by a Bench of three Hon'ble Judges.
Let this matter be placed before Hon'ble the Chief Justice of India for appropriate orders."
Hence the Appeal has been placed before us.
8. A three Judge Bench of this Court, has in Basant Kumar's case (supra) held as follows: (SCC p.546, para 9) "The next question is whether the LPA would lie against the judgment of the learned Single Judge? It is a settled legal position that under Section 54 of the Land Acquisition Act, the appeal would lie to the High Court; when the appeal on the basis of the pecuniary value was decided by a Single Judge necessarily, it being the judgment of the Single Judge, an appeal would lie to the same Court in the form of LPA to the Division Bench. The Division Bench was not right in holding that the LPA would not lie to the High Court against the judgment of the Single Judge. To that extent, the view of the High Court is not correct."
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9. A Letters Patent is the charter under which the High Court is established. The powers given to a High Court under the Letters Patent are akin to the constitutional powers of a High Court. Thus when a Letters Patent grants to the High Court a power of Appeal, against a judgment of a single Judge, the right to entertain the appeal would not get excluded unless the concerned statutory enactment excludes an appeal under the Letters Patent.
10. The question which thus arises is whether Section 54 of the said Act excludes an appeal under the Letters Patent. Section 54 of the said Act reads as under:
"54. Appeals in proceedings before Court.- Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908, and in Order XLIV thereof."
11. Mr. Sharan submits that Section 54 of the said Act contains a non-obstante clause. He submits that the words "notwithstanding anything to the contrary in any enactment for the time being in force" would also include the provisions Page 35 of 75 HC-NIC Page 35 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT contained in a Letters Patent. We are unable to accept this submission. A Letter Patent is not an enactment. It is the charter of the High Court. A non-obstante clause of this nature cannot cover the charter of the High Court.
14. In our view, Mr. Mathur is right. Section 26 of the said Act provides that every award shall be a decree and the statement of grounds of every award shall be a judgment. By virtue of the Letters Patent "an appeal" against the judgment of a single Judge of the High Court would lie to a Division Bench. Section 54 of the said Act does not exclude an Appeal under the Letters Patent. The word 'only' occurring immediately after the non- obstante clause in Section 54 refers to the forum of appeal. In other words it provides that the appeal will be to the High Court and not any other Court e.g. the District Court. The term "an appeal"
does not restrict it to only one Appeal in the High Court. The term "an appeal" would take within its sweep even a Letters Patent Appeal. The decision of the Division Bench rendered in a Letters Patent appeal will then be subject to appeal to the Supreme Court. Read in any other manner there would be a conflict between Section 54 and the provision of a Letters Patent. It is settled law that if there is a conflict, attempt should be made to harmoniously construe the provisions.
15. We, therefore, hold that under Section 54 of the said Act there is no bar to the maintainability of a Letters Patent Appeal. We therefore agree with the view taken in Basant Kumar's case. The reference is answered accordingly."
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5.8. Learned advocate for the applicant,
thereafter, has relied upon the decision of the Hon'ble Apex Court rendered in the case of Dhannalal v. Kalawatibai and others, reported in (2002) 6 SCC 16. In the said decision, the Hon'ble Supreme Court in para 9 and 23, observed thus:
"9. Broadly speaking, the main features of Chapter III-A are that it provides a summary procedure for the hearing of applications on the lines similar to those contained in Order 37 of the CPC. The tenant cannot contest the prayer for eviction from accommodation unless leave to defend is sought for by moving an application within the prescribed period of time and allowed. Default in appearance or refusal of leave results in the statement made by the landlord in the application for eviction being deemed to have been admitted by the tenant obliging the Rent Controlling Authority to pass an order of eviction. Where leave is granted to the tenant to contest the application, the Rent Controlling Authority shall hold an enquiry consistently with the practice and procedure of a Court of Small Causes. The requirement of the landlord is presumed to be bona fide unless the contrary is proved, that is to say, the burden of proof is placed on the tenant to rebut the case of the landlord contrary to the ordinary procedure in a Civil Court where the burden of proof lies on the landlord. As against an order of eviction passed by the RCA, a revision lies to the High Court and the remedy of appeal is Page 37 of 75 HC-NIC Page 37 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT excluded.
23. Plaintiff is dominus litis, that is, master of, or having dominion over, the case. He is the person who has carriage and control of an action. In case of conflict of jurisdiction the choice ought to lie with the plaintiff to choose the forum best suited to him unless there be a rule of law excluding access to a forum of plaintiff's choice or permitting recourse to a forum will be opposed to public policy or will be an abuse of the process of law. "
5.9.Learned advocate Mr. Desai, thereafter, has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Subal Paul v. Malina Paul, reported in AIR 2003 SC 1928 and more particularly para 1 and 51 of the said decision, which reads as under:
"1. The short question that arises for consideration in this appeal is as to whether a letters patent appeal would lie against the judgment of a learned Single Judge of the High Court filed under Section 299 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act').
51. For the aforesaid reasons, we are of the view that the order passed by the Single Judge was appealable to Letters Patent Bench and the objection in regard to maintainability of appeal was rightly overruled by the High Court. Consequently, this appeal falls and is, accordingly, dismissed. We direct the High Court to decide the letters patent appeal Page 38 of 75 HC-NIC Page 38 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT expeditiously."
5.10.Learned advocate Mr. Desai, thereafter, has placed reliance upon the decision of the Hon'ble Supreme Court in the case of State of Punjab v. Davinder Pal Singh Bhullar, reported in AIR 2012 SC 364. The Hon'ble Supreme Court in Para 41 to 43 of the said decision observed that:
"41. The court is "not to yield to spasmodic sentiments to vague and unregulated benevolence". The court "is to exercise discretion informed by tradition, methodized by analogy, disciplined by system". This Court in State of Rajasthan v. Prakash Chand & Ors., AIR 1998 SC 1344 observed as under:
"Judicial authoritarianism is what the proceedings in the instant case smack of. It cannot be permitted under any guise. Judges must be circumspect and self-disciplined in the discharge of their judicial functions......It needs no emphasis to say that all actions of a Judge must be judicious in character.
Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is the greatest threat to the independence of the judiciary. Eternal vigilance by the Judges to guard against any such latent internal danger is, therefore, necessary, lest we "suffer from self- inflicted mortal wounds". We must remember that the Constitution does not give unlimited powers to anyone including the Judge of all levels. The societal perception of Judges as Page 39 of 75 HC-NIC Page 39 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT being detached and impartial referees is the greatest strength of the judiciary and every member of the judiciary must ensure that this perception does not receive a setback consciously or unconsciously. Authenticity of the judicial process rests on public confidence and public confidence rests on legitimacy of judicial process. Sources of legitimacy are in the impersonal application by the Judge of recognised objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices. It is most unfortunate that the order under appeal founders on this touchstone and is wholly unsustainable".
42. This Court in State of U.P. & Ors. v. Neeraj Chaubey & Ors., (2010) 10 SCC 320, had taken note of various judgments of this Court including State of Maharashtra v. Narayan Shamrao Puranik, AIR 1982 SC 1198; Inder Mani v. Matheshwari Prasad, (1996) 6 SCC 587; Prakash Chand (Supra); R. Rathinam v. State, (2002) 2 SCC 391; and Jasbir Singh v. State of Punjab, (2006) 8 SCC 294, and came to the conclusion that the Chief Justice is the master of roster. The Chief Justice has full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows not only from the provisions contained in sub-section (3) of Section 51 of the States Reorganisation Act, 1956, but inheres in him in the very nature of things. The Chief Justice enjoys a special status and he alone can assign work to a Judge sitting alone and to the Judges sitting in Division Bench or Full Bench. He has Page 40 of 75 HC-NIC Page 40 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT jurisdiction to decide which case will be heard by which Bench. The Court held that a Judge or a Bench of Judges can assume jurisdiction in a case pending in the High Court only if the case is allotted to him or them by the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the Court. No departure from this procedure is permissible.
In Prakash Chand (Supra), this Court dealt with a case wherein the Chief Justice of Rajasthan High Court had withdrawn a part- heard matter from one Bench and directed it to be listed before another Bench. However, the earlier Bench still made certain observations. While dealing with the issue, this Court held that it was the exclusive prerogative of the Chief Justice to withdraw even a partheard matter from one Bench and to assign it to any other Bench. Therefore, the observations made by the Bench subsequent to withdrawal of the case from that Bench and disposal of the same by another Bench were not only unjustified and unwarranted but also without jurisdiction and made the Judge coram non-judice.
It is a settled legal proposition that no Judge or a Bench of Judges assumes jurisdiction unless the case is allotted to him or them under the orders of the Chief Justice.
It has rightly been pointed out by the Full Bench of Allahabad High Court in Sanjay Kumar Srivastava v. Acting Chief Justice, 1996 AWC 644, that if the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they would like to hear and decide, the machinery of the court could have collapsed and judicial functioning of Page 41 of 75 HC-NIC Page 41 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT the court could have ceased by generation of internal strife on account of hankering for a particular jurisdiction or a particular case.
43. In view of the above, the legal regime, in this respect emerges to the effect that the Bench gets jurisdiction from the assignment made by the Chief Justice and the Judge cannot choose as which matter he should entertain and he cannot entertain a petition in respect of which jurisdiction has not been assigned to him by the Chief Justice as the order passed by the court may be without jurisdiction and made the Judge coram non- judice."
6. On the other hand, learned advocate Mr. Mehul S. Shah appearing for the citee/objector mainly contended on the aspect of maintainability of this review application and not addressed this Court on the merits of the case. He, at the outset, submitted that this review application is not maintainable and misconceived. He submitted that testamentary petition along with both the civil applications were heard extensively after going through each and every aspect of legal and factual parameters and extensive hearing was given by this Court to both the sides and after doing the same, it is not proper for the present applicant to prefer this review application. This application is filed only with a view to fill in the lacuna while arguing the testamentary Page 42 of 75 HC-NIC Page 42 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT petition and other connected civil applications. This Court cannot re-appreciate the evidence and reach a different conclusion even if it is possible. The conclusion arrived at on appreciation of evidence cannot be assailed in review petition unless it is shown that there is an error on the face of the record or for some similar reason. Learned advocate Mr. Shah further contended that review proceedings are not proceedings of appeal and have to be strictly confined to the scope and ambit of the Code. That learned advocate for the applicant has argued in detail in the present review application, which itself suggests that this application does not fall in review. If the same points are argued with additional material or additional points are argued in the review application, the same is not permissible. Learned advocate Mr. Shah further contended that both the civil applications were taken together and argued by both the advocates. Learned advocate for the applicant has not requested this Court that his application be decided first at the time of arguments. The applicant has tried to add more grounds by way of this application for the purpose of filing an appeal before the Hon'ble Division Bench and therefore the same is not permissible. This Court has discussed every important and relevant aspects of the case in detail and therefore this Page 43 of 75 HC-NIC Page 43 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT Court may not entertain this application. He further contended that certain submissions were not canvassed by the learned advocate for the applicant - petitioner at the time of arguments of the civil applications, such as the contention with regard to 'dominus litis' and the decision rendered by Punjab & Haryana High Court is per incurium or the decision rendered by the Hon'ble Supreme Court in the case of Balwinder Kaur and others (supra) is not applicable, etc. Thus, at this stage, it is not permissible for him to take such contentions in review application. Learned advocate Mr. Shah further contended that advocate for the applicant has relied upon certain decisions in this application which are not at all cited and relied upon while arguing the aforesaid two civil applications. Thus, the applicant is trying to fill in the lacuna. In review application, he has argued for approximately five hours and thereby learned advocate for the applicant has wasted the valuable time of this Court and therefore this type of practice should be deprecated by this Court and hence this application be dismissed with exemplary cost. In review jurisdiction mere disagreement with the view of the judgment cannot be the ground for invoking the same and therefore this application is required to be dismissed with heavy cost.
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7. Learned advocate Mr. Shah has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President etc. reported in 2012 CJ (SC) 1531, and more particularly para 37 and 38, which read as under:
"37. False averments of facts and untenable contentions are serious problems faced by our courts. The other problem is that litigants deliberately create confusion by introducing irrelevant and minimally relevant facts and documents. The court cannot reject such claims, defences and pleas at the first look. It may take quite sometime, at times years, before the court is able to see through, discern and reach to the truth. More often than not, they appear attractive at first blush and only on a deeper examination the irrelevance and hollowness of those pleadings and documents come to light.
38. Our courts are usually short of time because of huge pendency of cases and at times the courts arrive at an erroneous conclusion because of false pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for all the conclusions. In the journey of discovering the truth, at times, this Court, on later stage, but once discovered, it is the duty of the Court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The court must Page 45 of 75 HC-NIC Page 45 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT effectively discourage fraudulent and dishonest litigants."
8. Mr. Shah, thereafter, placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Kamlesh Verma v. Mayawati and Ors, reported in 2013 CJ (SC) 1056, and more particularly para 4 and 8 to 17, which are as under:
"4) The only point for consideration in this petition is whether the review petitioner has made out a case for reviewing the judgment and order dated 06.07.2012 and satisfies the criteria for entertaining the same in review jurisdiction? Review Jurisdiction:
8) This Court has repeatedly held in various judgments that the jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is an error apparent on the face of the record. A mere repetition through different counsel, of old and overruled arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient. This Court, in Sow Chandra Kante & Anr. vs. Sheikh Habib (1975) 1 SCC 674, held as under:
"1. Mr Daphtary, learned counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to a rehearing.
May be, we were not right is
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refusing special leave in the first round; but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the Court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as counsel now urges and then pressed, our order refusing special leave was Page 47 of 75 HC-NIC Page 47 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality."
9) In a criminal proceeding, review is permissible on the ground of an error apparent on the face of the record. A review proceeding cannot be equated with the original hearing of the case. In M/s Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi, (1980) 2 SCC 167, this Court, in paragraph Nos. 8 & 9 held as under:
"8. It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: G.L. Gupta v. D.N. Mehta.
The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. Distt.Judge, Delhi. Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made Page 48 of 75 HC-NIC Page 48 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility":
Sow Chandra Kante v. Sheikh Habib.
9. Now, besides the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the respondent, was never brought to our attention when the appeals were heard, we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record."
10) Review of the earlier order cannot
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be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. This Court, in Col. Avtar Singh Sekhon vs. Union of India & Ors. 1980 (Supp) SCC 562, held as under:
"12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib this Court observed :
"A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality."
11) 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 its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for patent error. This Court, in Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8 SCC Page 50 of 75 HC-NIC Page 50 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT 715, held as under:
"7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P.T This Court opined: "What, however, we are now concerned with is whether the statement in the order of September1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous.
Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."(emphasis ours)
8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
9. Under Order 47 Rule 1 CPC a Page 51 of 75 HC-NIC Page 51 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT judgment maybe open to review inter alia 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 its power of review under Order 47 Rule1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".
12) Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review. This Court, in Lily Thomas & Ors. vs. Union of India &Ors., (2000) 6 SCC 224, held as under:
"54. Article 137 empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure which provides:Page 52 of 75
HC-NIC Page 52 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT "1. Application for review of judgment.--(1)Any person considering himself aggrieved:--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason,desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order."Under Order XL Rule 1 of the Supreme Court Rules no review lies except on the ground of error apparent on the face of the record in criminal cases. Order XL Rule 5 of the Supreme Court Rules provides that after an application for review has been disposed of no further application shall be entertained in the same matter.
56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition Page 53 of 75 HC-NIC Page 53 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its power sunder Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.
58. Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal case,(1995) 3 SCC 635 It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which,after considering those pleas, passed the judgment in Sarla Mudgal case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel Page 54 of 75 HC-NIC Page 54 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words "any other sufficient reason appearing in Order 47 Rule 1CPC" must mean "a reason sufficient on grounds at least analogous to those specified in the rule"as was held in Chhajju Ram v. Neki, AIR 1922 PC112 and approved by this Court in Moran MarBasselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 Error apparent on the face of the proceedings is an error which isbased on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa,AIR 1954 SC 440 this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233, it was held:
"It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. I In -- 'Batuk K. Page 55 of 75 HC-NIC Page 55 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT Vyas v. Surat Borough Municipality,AIR 1953 Bom 133' that no error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might breakdown, because judicial opinions also differ, and an error that might be considered by one Judge as self- evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case."Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case. The petition is misconceived and bereft of any substance."
13) In a review petition, it is not open to the Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the recordor for some reason akin thereto. This Court, in Kerala State Electricity Page 56 of 75 HC-NIC Page 56 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT Board vs. Hitech Electrothermics & Hydropower Ltd. &Ors., (2005) 6 SCC 651, held as under:
"10. .........In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise."
14) Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled Page 57 of 75 HC-NIC Page 57 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT argument is not enough to re-open concluded adjudications. This Court,in Jain Studios Ltd. vs. Shin Satellite Public Co. Ltd., (2006)5 SCC 501, held as under:
"11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care,caution and circumspection and only in exceptional cases.
12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of"second innings" which is impermissible and unwarranted and cannot be granted."
15) Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order Page 58 of 75 HC-NIC Page 58 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered,the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Summary of the Principles:
16) Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
(A) When the review will be maintainable:- (I) Discovery of new and important matter or evidence which,after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason"
has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., (1955) 1 SCR 520, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., JT 2013 (8)SC 275. (B) When the review will not be maintainable:-
(I) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be
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equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error,manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.
17) Keeping the above principles in mind, let us consider the claim of the petitioner and find out whether a case has been made out for interference exercising review jurisdiction."
9. Learned advocate Mr. Desai for the applicant in rejoinder has mainly submitted that this application is not filed under Order 47, Rule 1 of the Code but the same is filed under Article 215 read with High Court Rules and therefore the aforesaid decisions relied upon by the learned advocate for the objector are not applicable. He Page 60 of 75 HC-NIC Page 60 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT once again submitted that there are certain apparent errors on the face of the record as contended hereinabove and therefore this application is filed for review of the said judgment. Therefore, this application be allowed.
10. I have considered the arguments canvassed on behalf of the learned advocates for the parties. I have also gone through the judgment dated 24.07.2015 passed by this Court as well as the decisions relied upon by the learned advocates for the parties.
11. This Court, while rendering judgment dated 24.07.2015, has recorded the contentions raised and submissions canvassed by both the learned advocates i.e. learned advocate for the applicant
- petitioner as well as learned advocate for the citee/objector. This Court, in para 2 of the judgment, has observed that, "OJ CA No.669 of2014 has been filed by the original petitioner with a prayer that opposition made by the objector may be discharged/discarded whereas OJ CA 371 of 2015 has been filed by the objector with a prayer that Testamentary Petition No.1 of 2014 be dismissed for want of jurisdiction of this Court and this Court may decide the issue of jurisdiction as preliminary issue in Testamentary petition No.1 of 2014." Thus, this Court observed in para 3 Page 61 of 75 HC-NIC Page 61 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT that the issue raised in both the aforesaid applications are interconnected and, therefore, the same are taken up for hearing together. Thereafter, the facts of the case in the Testamentary Petition are recorded.
12. This Court, in para 4.3 of the judgment, has observed as under:
"4.3. In pursuance to the citation issued by this Court in the Testamentary Petition, the testator's elder bachelor son namely Tushar Natwarlal Patel (brother of the petitioner) appeared before this Court and has filed written statement/objections against the grant of probate in favour of the petitioner. In the said objection mainly, the objector has stated that the 'Will' produced at Annexure `A' seems to be not a genuine 'Will' and for such averment he has relied upon certain revenue entries and the revenue proceedings. The objector has specifically taken the contention in the objection that present petition is not maintainable and for the grant of probate of 'Will', the powers are vested with the District Court and, therefore, the present petition is required to be dismissed."
13. This Court has further observed in para 4.5 that OJCA No.669 of 2015 has been filed by the original petitioner with a prayer that objector has no right to contest the petition and therefore his objections are required to be discharged and thereafter in para 4.6, this Court Page 62 of 75 HC-NIC Page 62 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT has further observed that during the pendency of OJCA No.669 of 2015 objector has filed OJCA No.371 of 2015 with the aforesaid prayer and requested to decide the issue of jurisdiction as preliminary issue. Thus, in the aforesaid circumstances, both the applications were heard together and learned advocate for the present applicant - original petitioner has not taken any objection and on the contrary he argued both the applications simultaneously on merits. Thereafter this Court has recorded each and every contentions raised by the learned advocate for the applicant - original petitioner in detail. Similarly, all the judgments relied upon by the learned advocate for the applicant - petitioner are also recorded in the judgment. Thereafter, this Court has considered the arguments canvassed on behalf of learned advocate for the citee/objector.
14. This Court, thereafter, in para 6.18 of the judgment, recorded the submissions canvassed on behalf of learned advocate for the objector in OJCA No.669 of 2014 filed by the original petitioner - present applicant and recorded that the objections and issue raised by the objectors are required to be decided on its own merits and therefore such objections cannot be discharged at the outset. The objector is having caveatable Page 63 of 75 HC-NIC Page 63 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT interest or not can be an issue which is to be framed at the time of hearing of the testamentary petition. He has further contended that the objector has specifically stated that he is the elder son of the testator having interest in the property and he has raised doubt about the genuineness of the Will relying upon certain documentary evidence. Thus, the objector is having the caveatable interest. Thereafter, learned advocate Mr. Shah has placed reliance upon various decisions in support of his contentions including the decision rendered by the Hon'ble Supreme Court in the case of Krishna Kumar Birla (supra). This Court, thereafter, also recorded the submission of learned advocate Mr. Shah in para 6.19 of the judgment that, when the objector is having caveatable interest and filed objections pursuant to issuance of the citations, this Court may consider the same, and also consider the issue with regard to the jurisdiction of this Court. Even the issue with regard to the caveatable interest can be kept open and this testamentary petition can be transferred to the concerned District Court.
15. Thus, this Court, after considering the arguments canvassed on behalf of learned advocates for the parties, discussed various provisions of different Acts in detail. This Page 64 of 75 HC-NIC Page 64 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT Court, thereafter, in para 25 of the judgment held that once this Court has issued citations to the present objector and two others and pursuant to the said citations issued by this Court, objections are filed by the objector, the same are required to be considered by this Court for a limited purpose. This Court, thereafter, referred to the decision rendered by the High Court of Madras in the case of M.K.Sowbagiammal and Another vs. Komalangi Ammal By guardian Kandaswami Chetti and Anr., reported in AIR 1928 Madras 803 and observations made in para 9 and 12. In the said case, it has been observed by the Madras High Court that, "In dealing with the question - Has the caveator the necessary interest? - the test is, does the grant displace any right to which the caveator would otherwise be entitled? If so, he has such an interest, if not, he has not."
16. This Court, thereafter, referred the decision rendered by the High Court of Calcutta in the case of Bhobatarini Devi V/s Hari Charan Banerjee, reported in AIR 1917 Cal 311, wherein the Calcutta High Court has observed that, "In this case no caveat was necessary. Citations had been issued upon the daughters at the instance of the petitioner and in answer to the citation she appeared and claimed her right to be heard. Eight Page 65 of 75 HC-NIC Page 65 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT annas on such a petition is sufficient and the daughter, having appeared upon citation and being a person interested in the estate of the deceased, should obviously have been allowed to be present throughout the proceeding and to adduce such evidence as she might have in opposition to the claim."
17. Thereafter, this Court, in para 28 of the judgment, referred and relied upon the decision rendered by the Hon'ble Supreme Court in the case of Krishna Kumar Birla (supra) wherein it has been observed that "a Will is executed when the owner of a property forms an opinion that his/her estate should not devolve upon the existing heirs according to the law governing intestate succession. When, thus, a person who would have otherwise succeeded to the estate of the testator, would ordinarily have a caveatable interest, any other person must ordinarily show a special interest in the estate." Thus, after considering the aforesaid decisions, this Court held in para 29 that when the citation has been issued at the instance of the petitioner and in answer to the citation, when the elder son of the testator/objector appeared and claimed his right to be heard raising doubt about the genuineness of the Will, it can be said that the objector, in the present case, who is the elder son of the Page 66 of 75 HC-NIC Page 66 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT testator is having caveatable interest. Therefore, the present objector can file objections before this Court and can raise various contentions including the contention with regard to jurisdiction of this Court.
18. Thus, this Court after considering all these aspects, considered the preliminary objection raised by the objector and after considering various provisions of different Acts, held that this Court is having concurrent jurisdiction. However, in view of the provisions contained in Section 15 of the Code, the proceedings are required to be instituted before the concerned District Judge. Thus, this Court considered the request of learned advocate Mr. Shah that proceedings are required to be transferred to the District Judge and for such purpose this Court relied upon the decision rendered by the High Court of Punjab & Haryana in the case of Joginder Singh (supra). At this stage, it is relevant to note that at the time of arguments of the aforesaid two civil applications, learned advocate Mr. Desai never submitted that this decision is not applicable to the facts of the present case, nor he has submitted that the said decision is per incurium. The contention raised by the learned advocate for the applicant that the applicant is a dominus litis and can choose Page 67 of 75 HC-NIC Page 67 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT the forum was not taken while arguing Civil Applications. Such contention is taken in this application for the first time. However, for the first time in this application he has submitted that the said decision is per incurium. Thus, this Court, after placing reliance upon the decision rendered by the Punjab & Haryana High Court in the case Joginder Singh (supra), allowed OJCA No. 371 of 2015 filed by the objector and the main petition i.e. Testamentary Petition no.1 of 2014 along with OJCA No. 669 of 2014 are ordered to be transferred to the District Judge, Vadodara. Thus, after recording the finding that the objector is having caveatable interest as discussed hereinabove, his submission has been taken into account i.e. with regard to the jurisdiction of this Court and therefore after considering the decisions of the Hon'ble Supreme Court in the case of Executive Engineer, Road Development Division No.III, Panvel vs. Atlanta Limited reported in AIR 2014 SC 1093, this Court has transferred the proceedings to the Court of lowest grade as per Section 15 of the Code. It is relevant to note that this Court has not transferred the proceedings from one District to another District while exercising the powers under Section 24 of the Code and therefore the submission canvassed by learned advocate Mr. Desai that as per the sitting list and work Page 68 of 75 HC-NIC Page 68 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT allotted by the Hon'ble the Acting Chief Justice, this Court is not having power to transfer the proceedings to District Judge, is misconceived.
19. The contention raised by the learned advocate for the applicant that OJCA No. 371 of 2015, which is filed later in point of time by the objector has been decided first, whereas, OJCA No.669 of 2014, which is filed by the applicant prior in point of time has not been considered, is required to be discarded in view of the fact that both the aforesaid applications were heard together and at that time learned advocate for the applicant has not taken any objection. Further, this Court has held that the objector is having caveatable interest and therefore his preliminary objection with regard to the jurisdiction of this Court is required to be considered first. Hence, this Court considered the said objection first and thereafter transferred the Testamentary Petition along with OJCA No. 669 of 2014 filed by the applicant to the District Judge, Vadodara by keeping all the contentions of the parties open. Thus, the aforesaid contention raised by the learned advocate for the applicant is misconceived.
20. Another contention raised by learned advocate for the applicant is that once the petition is Page 69 of 75 HC-NIC Page 69 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT admitted by this Court and the said order has not been challenged by the citee/objector before the Higher Forum, he cannot raise objection with regard to the jurisdiction of this Court. This contention is also misconceived. This Court on the very first date of hearing admitted the testamentary petition and issued citation in favour of the concerned persons out of which one of the citees/present objector filed the reply in the testamentary petition, wherein he has raised the contention that this petition is not maintainable and for the grant of probate of will the powers are given to District Court. Thereafter, the citee/present objector filed the OJCA, wherein, he requested that the issue with regard to jurisdiction be decided as preliminary issue and testamentary petition be dismissed for want of jurisdiction. Thus, merely because the order of admission of the petition and the issuance of the citations has not been challenged before the Higher Forum by the citee/objector, it does not mean that the objector cannot raise any objection with regard to the jurisdiction of this Court. Thus, this contention is also misconceived and the same is not required to be entertained.
21. The another contention, which is raised by the learned advocate for the applicant is that the Appellate Forum was fixed when the Page 70 of 75 HC-NIC Page 70 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT testamentary petition was filed and therefore the same cannot be changed by an order of this Court by transferring the proceedings. If the proceedings are transferred to District Judge and the same is decided by the District Judge, the Appellate Court would be the Single Judge of High Court which is not permissible. It is required to be noted at this stage that the learned advocate for the applicant is not consistent in making submission. At one place, learned advocate for the applicant argued that even if testamentary petition is filed before the District Judge, the first appeal would lie before the Division Bench of this Court as the claim for jurisdiction in the petition is rupees one crore. However, thereafter, he has contended that if the proceedings are transferred to District Judge and the same is decided by him, the Appellate Court would be the Single Judge of High Court. Thus, inconsistent stand is taken by the learned advocate for the applicant. Against the order passed by the learned District Judge, first appeal would lie before this Court, which is a statutory remedy under the Indian Succession Act.
22. As per the decision rendered by the Hon'ble Supreme Court in the case of Kamlesh Verma (supra), the jurisdiction and scope of review is not that of an appeal and it can be entertained Page 71 of 75 HC-NIC Page 71 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT only if there is an error apparent on the face of the record. A mere repetition through different counsel of old and overrules arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient. When the learned counsel for the applicant has argued at length all the points which were urged at the earlier stage, wherein new points are also added, virtually amounts to a re-hearing. A review is not a routine procedure. 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 its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is re- heard and corrected, but lies only for patent error. It is further held that error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. Power of review can be exercised for correction of a mistake but not to substitute a view. A mere possibility of two views on the subject is not a ground for review.
23. Thus, keeping in mind the various decisions rendered by the Hon'ble Supreme Court referred to in the aforesaid case of Kamlesh Verma (supra), I Page 72 of 75 HC-NIC Page 72 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT have considered this application. In the present case, learned advocate for the applicant has argued for at least five hours and tried to re- argue the matter and argued certain new points which are not raised/canvassed at the time of hearing of the aforesaid two civil applications. While delivering the judgment dated 24.07.2015, this Court has considered each and every submissions canvassed on behalf of both the learned advocates for the parties. Thus, it is not proper on the part of the learned advocate for the applicant to submit that this Court has not considered all submissions.
24. Thus, there is no apparent error on the face of the record as contended and argued by learned advocate for the applicant. Moreover, learned advocate for the applicant relied upon certain decisions, which were earlier not cited by him or relied upon by him and therefore the same are not required to be considered in this review application. From the contentions raised by the learned advocate for the applicant, it appears that he has filed this application with a view to fill in the lacuna and the learned advocate for the applicant has tried to point out that this Court has committed errors on various aspects. If, learned advocate for the applicant is of the opinion that this Court has committed any error, Page 73 of 75 HC-NIC Page 73 of 75 Created On Fri Oct 02 01:27:44 IST 2015 O/OJMCA/155/2015 JUDGMENT he can certainly approach before the Higher Forum. However, for such purpose, review application is not maintainable.
25. It is required to be noted at this stage that on one hand learned advocate for the applicant contended that the provisions of the Code would not apply to the Special Act and on the other hand he relied upon the provisions of the Code. Hence, the reliance placed by the learned advocate for the applicant upon the provision of Section 4 of the Code is misconceived. Moreover, learned advocate for the applicant is also confused about the Appellate Forum being the Single Judge of this Court or the Division Bench of this Court. However, all these aspects are not required to be gone into at the time of deciding the review application and therefore no detailed discussion is made in this regard.
26. In view of the aforesaid discussion, present application deserves dismissal and accordingly, it is dismissed.
(VIPUL M. PANCHOLI, J.) Jani At this stage, learned advocate Mr.Desai for the applicant requested that this order be stayed for a period of six weeks. Request is accepted.
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This order is stayed for a period of six weeks.
(VIPUL M. PANCHOLI, J.) Jani Page 75 of 75 HC-NIC Page 75 of 75 Created On Fri Oct 02 01:27:44 IST 2015