Orissa High Court
Bairagi Charan Sethy vs Kangali Behera (Died) And Ors. on 11 January, 2000
Equivalent citations: AIR2000ORI83, AIR 2000 ORISSA 83, (2000) 2 CIVILCOURTC 357 (2000) 89 CUT LT 633, (2000) 89 CUT LT 633
Author: P.K. Misra
Bench: P.K. Misra
ORDER P.K. Misra, J.
1. The plaintiff has sought for review of the decision dated 26th August, 1993, in Second Appeal No. 351 of 1983.
2. T.S. No. 151/75 was filed by the present petitioner for specific performance of contract on the allegation that there was an oral contract for sale on 7-10-1974 between him and defendant No. 2, an agnatic relation and defendant No. 1 who is the husband of Defendant No, 2 and out of the consideration amount a sum of Rs. 100/-had been paid to Defendants 1 and 2 but no receipt had been obtained as Defendants 1 and 2 were relations. It was further claimed that subsequently, Defendant No. 3 purchased the disputed property on 5-11-1974 from Defendants 1 and 2 in spite of being aware of the earlier oral agreement.
3. Defendants 1 and 2 filed a joint written statement supporting the case of the plaintiff. Defendant No. 3 filed a separate written statement denying the alleged oral agreement. He took the plea that he was a bona fide purchaser of the property for value and without notice of the alleged oral contract.
4. The trial Court found that there was no oral contract between the plaintiff and Defendants 1 and 2 and, accordingly, dismissed the suit. In Title Appeal No. 31/76, initially the aforesaid decision of the trial Court was confirmed. The present petitioner filed Sceond Appeal No. 180 of 1978 which was allowed and the matter was remanded to the lower appellate Court for fresh disposal. Thereafter, the lower appellate Court relying upon Ext. 1, the letter addressed to the plaintiff, believed the case of the oral agreement and allowed the appeal. Then it was the turn of Defendant No. 3 to come to this Court in Second Appeal No. 351 of 1980. In the aforesaid Second Appeal it was observed that Ext. 1, the letter instead of supporting the allegations of alleged oral agreement, rather disproved the ease of the plaintiff regarding the alleged agreement and, accordingly, the finding of the lower appellate Court was reversed and the suit was dismissed. Undeterred, the plaintiff has filed this civil review application for reviewing the decision dated 26th August. 1993, in Second No. 351 of 1983.
5. It is contended by the learned counsel for the petitioner that if the Ext. 1 would have been considered by the learned single Judge in its proper perspective, the case of the oral agreement would have been believed.
6. Order 47, Rule 1 of the Code of Civil Procedure (hereinafter referred to as 'C.P.C.') contemplates the circumstances in which a Court can review its earlier decision. The provisions contained in Order 47, Rule 1, C.P.C., as far as relevant, are extracted hereunder :--
"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 thee decree or made the order."
Merely because a decision is wrong, is not a ground to review an earlier decision. The Court dealing with an application for reviewing an earlier decision does not sit as an appellate Court over the earlier decision and its jurisdiction is limited to the circumstances contemplated in Order 47, Rule 1, C.P.C. The tendency of a successor Judge to sit in appeal over an earlier decision rendered by a different Judge is to be eschewed and merely because a different view of the materials on record can be taken, is not sufficient to review an earlier decision. As contemplated in Order 47, Rule 1, C.P.C., there must be an error apparent on the face of record to review an earlier decision (the two other grounds contemplated in Order 17, Rule 1, C.P.C., arc evidently inapplicable in the present case).
7. In the present ease, the learned Judge deciding the second appeal on earlier occasion took a particular view regarding the implication of Ext, 1. It may be that an appellate Court possibly would have taken a different view of the matter. However, while exercising the jurisdiction under Section 114 read with Order 47, Rule 1, C.P.C., it is not open to the Court to review the earlier decision merely because the interpretation of a particular document is not in its proper perspective.
8. The learned counsel appearing for the petitioner also contended that the learned Judge while deciding the Second Appeal on earlier occasion had not kept in mind the limited scope for interference envisaged in a second appeal under Section 100, C.P.C., particularly, after the amendment of Section 100, C.P.C, by Act 104 of 1976. It may be so, but this cannot be a ground to review an earlier decision and the remedy of the petitioner was to file an appeal before the higher Court and not to seek, a review of the earlier decision.
9. For the aforesaid reasons, I do not find any merit in this review application, which is accordingly dismissed. There will, be no order as to cost.