Tripura High Court
Mr. S. M. Chakraborty vs Mr. S. Lodh on 6 December, 2022
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HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
Review Pet. No.60 of 2022
For Petitioner(s) : Mr. S. M. Chakraborty, Sr. Advocate.
Mrs. P. Chakraborty, Advocate.
For Respondent(s) : Mr. S. Lodh, Advocate.
HON'BLE THE CHIEF JUSTICE (ACTING) _O_ R_ D_ E_ R_ 06/12/2022 Heard Mr. S. M. Chakraborty, learned senior counsel assisted by Mrs. P. Chakraborty, learned counsel appearing for the petitioners. Also heard Mr. S. Lodh, learned counsel appearing for the respondent.
This petition has been filed under Chapter-X of the Gauhati High Court Rules read with Order-XLVII Rule-1 of the Code of Civil Procedure, 1908 for review of the judgment and order dated 09.09.2022 passed in RSA.No.03 of 2020 by this Court.
The petitioner has prayed for the following reliefs:
i. Admit the petition and issue notice upon the respondent to show cause as to why the review petition filed by the petitioner shall not be allowed. ii. Pass order setting aside the judgment dated 09.09.2022 passed in RSA.No.03 of 2020 by way of review and remand the matter to the Court of first appeal for necessary appreciation of the issues which were required to be determined and gone into by the courts below in trying and deciding the first appeal.
iii. After hearing the petition pass order in the light the prayers made above for rendering complete justice to the petitioner any other order or orders as may be considered and any other order or orders as may be considered appropriate may kindly be passed."
The brief fact of the present review petition is that the petitioner filed a second appeal under Section-100 read with Order-XLII Rule-1 of the Code of Civil Procedure before this Court being RSA. No.03 of 2020 challenging inter alia the judgment and decree dated 10.04.2019 passed by the learned Addl. District Judge, Court No.2, West Tripura, Agartala in T.A. No.09 of 2018 arising out of judgment and decree dated 22.02.2018 passed by the learned Civil Judge (Sr. Division) Court No.1, Agartala, West Tripura in T.S.No.53 of 2015.
After hearing the learned counsel appearing for the parties and upon considering the evidence on record placed in the second appeal, was Page 2 of 3 pleased to hold that several issues, as discussed by this Court in its judgment, were not being appreciated by the Court below and in such view of the matter the Court being a Court of second appeal could not have appreciated the evidences which does not form part and parcel of the arguments on substantial questions of law and thus, dismissed the second appeal.
Since, this Court by its judgment dated 09.09.2022 observed that several issues were not being appreciated by the Courts below, this Court felt were essentially required to be gone into by the Courts below, the petitioner has filed this petition for review of the judgment and order dated 09.09.2022 passed in RSA.No.03 of 2022 in the light of the observations made therein and further pray for remand the matter to the court of first appeal for the interest of justice.
Mr. S. M. Chakraborty, learned senior counsel assisted by Mrs. P. Chakraborty, learned counsel appearing for the petitioners has submitted that several issues came up before this Court during the course of argument which were not being appreciated as such, the same ought to have been remanded back to the court below for appreciation of facts.
During the course of arguments, this Court has considered the substantial questions of law as has been framed viz. "1. Whether the findings of the learned Courts below are perverse? 2. Whether the contents of the Sale Deed(Exbt-1) and the Sale Deed as a whole has been proved in accordance with law?" Learned counsel appearing for the petitioner has not advanced any argument on the substantial questions, however made certain submission touching the part of evidence and persuaded this Court to impress on the point of appreciation of evidence before the trial Court.
It is settled principle of law that in the second appeal, the case would be dealt with on the substantial question of law but not on the appreciation of evidence before the trial Court. Since the argument was advanced, this Court by order dated 09.09.2022 has dismissed the second appeal. However, the present review petition has been filed and the learned senior counsel for the petitioner again made an attempt to impress this Court on the question of factual aspects. The facts which have been narrated by the learned senior counsel were already considered by the learned Court below and Page 3 of 3 the lower appellate Court and this Court in the second appeal negated those submissions.
Accordingly, the present review petition cannot be entertained. Learned senior counsel for the petitioner neither in the pleadings nor in the argument made any submission with regard to reviewing of the order and to point out the infirmities so as to re-consider the judgment passed in second appeal dated 09.09.2022.
In view above observation, the present review petition stands dismissed. As a sequel, miscellaneous applications pending, if any, shall stand closed.
CHIEF JUSTICE (ACTING) A. Ghosh