Gauhati High Court
Niranjan Sarkar And Anr. vs Swapna Dam And Anr. on 7 December, 2000
Equivalent citations: AIR2001GAU92, AIR 2001 GAUHATI 92, (2001) 3 CIVLJ 81 (2001) 2 GAU LR 102, (2001) 2 GAU LR 102
Author: A.K. Patnaik
Bench: A.K. Patnaik
JUDGMENT
1.
1. This is an application under section 114 of the Code of Civil Procedure, 1908, for review of the judgment and decree passed by this court on 2.5.1997 in Second Appeal No.30 of 1993.
2. The relevant facts for disposal of this review application briefly are that the respondent No.1 filed a suit for declaration of right, title and interest in the suit land for recovery of khas possession and perpetual injunction against the petitioners. The petitioners contested the said suit pleading, inter alia, in the written statement that the respondent No.1 had transferred the possession of the suit land to the petitioners in pursuance of a contract for sale and that the petitioners had legal and valid title to retain possession of the suit land, and to enforce the said contract for sale. The trial court after recording the evidence decreed the suit by judgment and decree dated 15.9.1992. The petitioners preferred an appeal, but the said appeal was also dismissed by the first appellate court by judgment and decree dated 30.9.1992. The petitioners then preferred Second Appeal No. 30 of 1993 before this court, and at the time of admission of the said second appeal, the following two substantial questions of law were formulated by this court on 17.12.1993:
"(i) Whether the suit was barred under the provisions of section 53A of the TP Act?
(ii) Whether the order passed by the trial Court under the provisions of Order 17, Rule 1. CPC, directing the defendants to produce all the witnesses on the same day is an illegal order?"
After hearing the parties, this court answered the aforesaid two questions against the petitioners. The court held by the judgment and decree dated 2.5.1997 that the suit was not barred under the provisions of section 53A of the Transfer of Property Act and that the order passed by the trial court under the provisions of Order 17, rule 1, CPC, directing the defendants to produce all the witnesses on the same day was not an illegal order. The present application has been filed for review of the said judgment and decree of this court in the second appeal.
3. Mr. KN Bhattacharjee, learned counsel appearing for the petitioners, submitted that during the pendency of the second appeal, the respondent No.1 sold the suit land to the respondent No. 2 and that such sale was hit by the principle of lis pendens as contained in section 52 of the Transfer of Property Act, (for short, "the TP Act"). Mr. Bhattacharjee further submitted that since the respondent No. 1 had sold the suit land to the respondent No.2, the respondent No. 1 had ceased to be the owner of the suit land and title in respect of the suit land could not be declared in favour of respondent No. 1. Mr. Bhattacharjee argued that the court while deciding the second appeal had not considered this important question of law and as a result there was an error apparent on the face of the record calling for review of the judgment passed in the second appeal. Mr. Bhattacharjee cited the decision of the High Court of Jammu & Kashmir in Custodian General EP v. Mohd. Syed, AIR 1970 J&K 163, in which it has been held that where a specific provision of law is not pointed out to the court at the time of passing of the order, such an order suffers from an error apparent on the face of the record so as to justify a review. Mr. Bhattacharjee finally submitted that findings by this court in the judgment in Second Appeal No.30 of 1993 on section 53A of the TP Act also should be reconsidered by this court.
4. Mr. Ashok Chakraborty, learned counsel appearing for the respondents, on the other hand, contended that the scope of review under section 114, CPC, is limited to ground indicated in Order 47, rule 1, CPC, and that a proceeding for review cannot be converted to a proceeding in an appeal. According to Mr. Chakraborty, this is an attempt made by the petitioners to have the second appeal heard again on merit and this is not permissible under the provisions of section 114, Order 47, rule 1, CPC. Mr Chakraborty further submitted that on account of long delay in adjudication of the dispute in the present case first in the trial court, then in the first appellate court and finally in the second appellate court, the respondents have suffered a lot of prejudice and hardship and that the litigation should be ended by the court once and for all.
5. Regarding the findings recorded in the judgment in second appeal on section 53A of the TP Act, it has not been shown either in the grounds in the review application or at the time of hearing of this review application as to how the said judgment suffers from an error apparent on the face of the record. In the said judgment in second appeal, the question as to whether the suit filed by the respondents was barred under section 53A of the TP Act has been dealt with at length and after considering the evidence on record and the decisions of the Supreme Court cited by the learned counsel for the parties at the time of hearing of the second appeal, the court has come to the conclusion that the suit was not barred under section 53A of the TP Act. The said findings recorded by the court in the judgment in second appeal cannot be reconsidered on merit in this review application.
6. The other two contentions raised by Mr. Bhattacharjee, learned counsel for the petitioners that the sale of the suit land by the respondent No. 1 to the respondent No. 2 was hit by the principle of lis pendens under section 52 of the TP Act, and that in any case the respondent No. 1 lost title in respect of the suit land after she sold the suit land to the respondent No.2, I find that no substantial question of law on the aforesaid two contentions had been formulated by the court at the time of admission of the second appeal on 17.12.1993 and only two substantial questions of law formulated at the time of admission of the second appeal on 17.12.1993 have been indicated above in this judgment. Mr. Bhattacharjee, learned counsel for the petitioners, however, explained that since the aforesaid sale of the suit land by the respondent No. 1 to respondent No. 2 had taken place during the pendency of the second appeal, the aforesaid two contentions could not possibly be raised in the Memorandum of Appeal filed before the said sale nor could this court possibly formulate substantial questions of law at the time of admission of second appeal on 17.12.1993 on the aforesaid two contentions relating to sale of the suit land by the respondent No. 1 to the respondent No.2. It there were such difficulties as pointed out by Mr. Bhattacharjee in raising the aforesaid two contentions relating to sale of the suit property by respondent No. 1 to respondent No. 2 in the Memorandum of Appeal and at the time of admission of appeal, the said two contentions could have been raised at any time on or before the hearing of the second appeal so that the court could formulate substantial question of law on the said contentions and then answer them in the judgment in the second appeal after hearing the respondents.
7. For appreciating the aforesaid reason, I would like to refer to section 100, CPC:
"100. Second Appeal. - (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court for every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
Sub-section (1) of section 100, quoted above, states that a second appeal will lie to the High Court, if the High Court is satisfied that the case involves a substantial question of law. Sub-section (3) of section 100 provides that the Memorandum of Appeal shall precisely state the substantial question of law involved in the appeal and sub-section (4) of section 100 provides that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. Sub-section (5) of section 100, CPC, states that the appeal shall be heard only on the question so formulated. The proviso to sub-section (5) of section 100, CPC, however, saves the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.
8. In the present case, it was open for the petitioners to have urged at the time of hearing of the second appeal that the sale by the respondent No.1 to the respondent No. 2 during the pendency of the second appeal was hit by the principle of lis pendens contained in section 52 of the TP Act and that the respondent No. 1 had lost title in respect of the suit property after she had sold the suit land to the respondent No. 2, and if the court was satisfied that the case involved such substantial questions of law, it would have recorded its reason and proceeded to hear the parties on the said substantial questions of law. But the judgment of this court in the second appeal would show that no such contentions relating to sale of the suit land by the respondent No. 1 to respondent No. 2 were in fact raised, and in any case it appears that the court has not allowed the counsel for the petitioners to argue on the aforesaid contentions relating to sale of the suit land by the respondent No. 1 to the respondent No. 2.
9. In an application of a judgment passed in Second Appeal, the court can only consider the errors apparent on the face of the record in its judgment on the substantial questions of law already heard and decided by the court and cannot consider fresh substantial question of law which was not heard and decided by the court at the time of disposal of the second appeal.
10. The decision of the High Court of Jammu & Kashmir in Custodian General EP v. Mohd. Syed (supra) is in respect of a review of a judgment delivered on a writ petition and not in respect of a judgment delivered in second appeal. In the said decision, the High Court of Jammu & Kashmir has held that where a specific question of law is not pointed out to the court at the time of passing of order, such order suffers from an error apparent on the face of record so as to justify review. This decision would have had some bearing to the present case if a particular provision of law relevant for answering the two substantial questions of law heard and decided by the court in the judgment in second appeal had not been brought to the notice of the court. But the provisions of section 52 of the TP Act containing the principle of lis pendens are not relevant for the purpose of deciding the two substantial questions of law which were formulated by the court on 17.12.1993, and which were heard and decided by the court in the judgment in the second appeal.
11. For the aforesaid reasons, I am not inclined to grant review in this case and I accordingly reject the review application. The interim order passed by this court in Civil Misc. Case No. 33/1997 on 18.6.1998 staying the judgment and decree dated 2.5.1997 in Second Appeal No. 30 of 1993 is vacated.