Punjab-Haryana High Court
Ramesh vs Smt. Ishwar Devi And Others on 21 February, 2012
R.A. No. 147-CII of 2011 1
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.A. No. 147-CII of 2011 (O&M)
Date of Decision: February 21st, 2012
Ramesh
.... Applicant
Versus
Smt. Ishwar Devi and others
.... Respondents
CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
Present Mr. Jagdish Manchanda, Advocate,
for the applicant.
Mr. Balraj Singh, Advocate,
for the respondents.
VIJENDER SINGH MALIK, J.
This is an application brought by Ramesh, the petitioner, under Order 47 Rule 1 read with section 151 CPC for review of the orders dated 3.10.2011 passed by this court in Civil Revision No. 6096 of 2011.
Briefly put, the facts necessary to capture the controversy in the true light are that civil suit No. 183 of 1998 titled Yog Nath Vs. Ramesh was filed by Yognath claiming ownership over the land bearing khasra No. 813 situated in village Badli, Tehsil Bahadurgarh, District Jhajjar. The trial court decreed the suit holding that Udho Dass, the vendor of the defendant was not owner of khasra No. 813 and he could not have sold the land out of the R.A. No. 147-CII of 2011 2 ..
same to defendant - Ramesh by way of sale deed dated 5.7.2000. The first appeal preferred by Ramesh was dismissed by learned Additional District Judge, Jhajjar on 30.8.2007 and the same was the fate of the Regular Second Appeal before this court. The Special Leave Petition of Ramesh was also dismissed by Hon`ble Supreme Court of India on 19.8.2011. While dismissing the SLP, Ramesh was given to vacate the premises in question within a period of six months provided he furnished an undertaking before Hon`ble Supreme Court of India within six weeks, taken from 19.8.2011 to the effect that he would vacate the premises in question within a period of six months. No such undertaking was furnished by Ramesh before Hon`ble Supreme Court of India.
Yognath died thereafter and his Legal Representatives sold the suit property to Satish and Indrawati. In the execution proceedings brought by the heirs of Yognath and the aforesaid vendees, Ramesh filed objections questioning the right of Yognath to sell the property. He had also claimed that he had challenged the sale deed by way of separate suit and that the proceedings of the execution should be stayed. He had also claimed that the vendees and the heirs of Yognath were not entitled to get possession of the suit property because partition proceedings were going on before Assistant Collector Ist Grade, Bahadurgarh and till those proceedings are finalized, the possession could not be taken. R.A. No. 147-CII of 2011 3
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Notice of the Review Application was given to the respondents, who have not desired to file any reply thereto.
I have heard Mr. Jagdish Manchanda, learned counsel for the applicant and Mr. Balraj Singh, learned counsel for the respondents. I have gone through the record carefully.
Learned counsel for the applicant has submitted that in the previous litigation, R.S.A. No. 1313 of 1974 was decided by this court vide judgment dated 21.2.1983 and the following was the direction given by this court :-
"... I however, clarify that if the appellants still have any grievance it shall be opined to them to approach the revenue authorities for partition of the land. In case they file such an application, the revenue officer or the revenue court, shall partition the land in accordance with the shares of the parties while keeping their possession intact and readjust their shares in accordance with law.."
He has further submitted that against this judgment, Yognath went by way of SLP before Hon`ble Supreme Court of India and Annexure A2 is the copy of orders of Hon`ble Supreme Court dated 17.8.1987. According to him, Hon`ble Supreme Court had also upheld the directions given by this court and disposed of the appeal. He then referred me to the order dated 19.5.2000 of Assistant Collector Ist Grade, Bahadurgarh where he has declared title of various persons to the various pieces of land including khasra No. 813 and has held that there was no need of partition. He has submitted that these judgments and orders were not brought to the notice of this court when the revision petition was decided and that on account of this fact, an error apparent R.A. No. 147-CII of 2011 4 ..
on the face of record has occurred in the orders dated 3.10.2011 which needs to be corrected.
Learned counsel for the respondents/non-applicants has submitted, on the other hand, that in second round of litigation initiated by Yognath by way of a suit for possession, Ramesh has lost upto Hon`ble Supreme Court of India. According to him, when Hon`ble Apex Court gave him time of six months to vacate the premises in question subject to the condition of his giving undertaking within 6 weeks from the date of the order, he did not comply with the said orders. According to him, after failing to comply with the directions of Hon`ble Supreme Court, the applicant has no right to resist the delivery of possession to the successors of Yognath. He has submitted that no material fact or circumstance remained unconsidered by this court while dismissing the revision petition brought by the applicant, Ramesh. According to him, there is no error apparent on the face of record and, therefore, the jurisdiction of this court for exercising the power of review could not be invoked in this case.
Learned counsel for the respondents has further submitted that the applicant wants this court to sit over its own orders as an appellate court and wants reappraisal of the material before it, which is not permissible. He has placed reliance on a decision of Hon`ble Supreme Court of India in Meera Bhanja Vs. Nirmala Kumari Choudhary 1995 (2) RRR 440, where it is laid down as to what the expression "an error apparent on face of record" means and how the review jurisdiction is different from appellate jurisdiction. R.A. No. 147-CII of 2011 5
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In the above cited case, an earlier decision of Hon`ble Supreme Court of India in Aribam Tuleshwar Sharma Vs. Aribam Pshak Sharma, AIR 1979 SC 1047 was referred to, where it has been laid down that there are definitive limits to the exercise of the powers of review, which may be exercised on the discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within the knowledge of the person seeking the review or could not be produced by him at the time when the orders under review were made. It is further laid down therein that the power of review may be exercised where some mistake or error apparent on the face of the record is found or on any other analogous ground. However, a word of 'caution' is then sounded to emphasize the fact that the power of review may not be confused with the appellate power, which may enable the appellate court to correct the manner of all errors committed by the subordinate court. The expression 'an error on the face of record' is said to mean an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. The following observations made in Satyanarayan Laxminarayan Hegde Vs. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, have also been noticed:-
" An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self- evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the R.A. No. 147-CII of 2011 6 ..
powers of the superior Court to issue such a writ".
While dismissing the Regular Second Appeal of Udho Dass and Panna Ram, the predecessors of Ramesh, applicant, it was clarified that if they had any grievance, they could approach the revenue authorities for the purpose of partition of the land. The Assistant Collector Ist Grade, Bahadurgarh, whose order is referred to me, says that there is no need of partition proceedings. So, there is no effect of the order of Assistant Collector Ist Grade. After that, Yognath filed a suit for possession. His suit was partly decreed by the trial court and the decree continued to be confirmed in the appeals brought against the same. Hon`ble Supreme Court of India vide orders dated 19.8.2011 granted six months' time from that date to Ramesh to vacate the premises in question. This concession was also not unconditional. He was required to furnish usual undertaking before Hon`ble Supreme Court of India within six weeks from the date of the order to the effect that he would vacate the premises within 6 months from that date. He failed to do so and after the decree became final in favour of the successors of Yognath and they sought its execution, the applicant filed objections and claimed that he had filed a suit challenging the sale deed executed by heirs of Yognath and that the partition proceedings were going on and that the execution should not proceed. The very objections preferred by Ramesh amount to contempt of orders dated 19.8.2011 of Hon`ble Supreme Court. By bringing this review application, the applicant has clearly wasted valuable time of this court because he has not been able to point out any error apparent on the face of the record of the case, for which the power of review could be exercised. Consequently, the review R.A. No. 147-CII of 2011 7 ..
application has no merit whatsoever and is dismissed with Rs.10,000/- as costs to be paid by the applicant to the other party.
(VIJENDER SINGH MALIK) JUDGE February 21st, 2012 som