Himachal Pradesh High Court
Kaushalya Devi vs Kaushalaya Devi And Others on 27 July, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
.
CMP No. 158 of 2012 in
RSA No. 110 of 2007 alongwith
Review Petition No.133 of 2015
Reserved on:11.7.2017
Decided on: 27.7. 2017
Kaushalya Devi. ...Applicant/appellant.
Versus
Kaushalaya Devi and others. ...Respondents.
_____________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1 No.
For the Petitioner: Mr. K.D. Sood, Sr. Advocate with Mr. Ankit
Aggarwal, Advocate.
For the respondents: Mr. Adarsh Sharma, Advocate.
_________________________________________________________
Justice Tarlok Singh Chauhan, Judge:
By medium of this application under Order 39 Rule 2-A read with section 151 of the Code of Civil Procedure (for short 'Code'), the applicant-appellant (for short 'applicant') has sought direction for punishing the respondents for having willfully disobeyed the orders passed by this Court on 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 2 3.5.2007 in CMP No. 169/2007 and at the same time .
has also sought the attachment and sale of the property of the respondents.
2. The applicant was the plaintiff, who had filed a suit for declaration and injunction with respect to the suit land comprising Khata No. 52 min, Khatauni No. 81, Khasra No.1678 situated in Up-
Mohal Narwana, Yol Cantt. Tehsil Dharamshala, District Kangra. The suit came to be dismissed and the first appeal preferred by the applicant against such dismissal was also dismissed constraining the applicant to file the Regular Second Appeal, which was admitted by this Court on 3.5.2007. Alongwith the appeal, the applicant filed an application under Order 39 Rules 1 and 2 of the Code for restraining the respondents from raising any construction on the land comprised in Khasra Nos. 1679 to 1862 and also the land in dispute comprising in Khasra No. 1678, which was registered as CMP No. 169/2007. This application came up for consideration before this ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 3 Court on 3.5.2007 and the following order came to be .
passed:
"Present: Mr. B.K. Sood, Advocate for the appellant.
Mr. B.S. Atri, Counsel for the Caveators.
Heard learned counsel for the parties. Admit on the substantial questions of law as filed with the appeal.
CMP No. 169/2007.
This application has been filed by the appellant with the prayer that the respondents may be restrained from raising any construction. I have heard the learned counsel for the parties. It is directed that the parties to this appeal shall maintain status quo as existing today qua the nature and possession of the land as described in the application during the pendency of the appeal. The application is disposed of. Dasti copy on usual terms.
3. It is averred that despite the stay order having been passed by this Court in presence of the counsel for the parties, the respondents on 11.1.2012 cut one eucalyptus tree from the land in dispute and started raising construction on the land in dispute on 14.1.2012. The case was reported to the police as also to the Deputy Commissioner, Kangra, but despite being informed of the order, respondents continued to raise the construction and had raised the basement pillars up to the roof level and refused ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 4 to stay the construction on the premise that there .
was no stay order from this Court. The copies of the report made to the Deputy Commissioner, Kangra as also the police have also been attached as Annexures A-1 and A-2 with the application and likewise the photographs of the felled eucalyptus tree have been appended as Annexure A-3. Statements recorded by the police have also been annexed as Annexure A-4.
4. The respondents in their reply to the application have submitted that they were not aware of the orders passed by this Court as the same were never conveyed to them. It is claimed that the respondents had raised septic tank and other construction over their own land in which the applicant has no title or interest. It is further averred that the respondents did not engage or authorize any counsel much less the counsel, who appeared on their behalf. They also never authorized any counsel to file the caveat. It is further averred that this mischief of caveat and appearance of the learned ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 5 counsel for the respondents is the manipulation of .
the applicant, which needs to be proved.
5. The applicant has filed rejoinder to the reply filed by the respondents wherein apart from reiterating the averments as contained in the application, it has been submitted that the respondents themselves had moved an application bearing CMP No.20338 of 2013 under section 151 of the Code for vacation of the stay order and the same is dated 27.11.2013 and, therefore, cannot feign ignorance of the orders passed by this Court.
6. That apart, the respondents have continued with the construction work again on 19.1.2014 when the High Court was in winter vacations and taking advantage thereof started the construction in post haste manner. The matter was reported to the SDM, Dharamshala on 6.2.2014 as also to the SHO, Thana Dharamshala on 9.2.2014.
The matter was reported to the SHO firstly on 18.1.2014 but the respondents started construction on 19.1.2014. Despite the stay order being brought ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 6 to the notice of the respondents they continued with .
the construction and willfully disobeyed the order passed by this Court. The respondents continued with the construction despite having been informed by the police to stay the construction. Copy of the report submitted by the SHO, Thana Dharamshala has been appended with the rejoinder as Annexure A-
6 and the copy of report submitted to the SDM, Dharamshala has been appended as Annexure A-7.
Similarly, the report made to the police on 9.2.2014 has been appended as Annexure A-8 whereas the photographs taken on 6.2.2014 have been appended as Annexure A-9. It is further averred that even thereafter the respondents did not stop the construction and, therefore, deserve to be retained in civil prison as they have no respect to the majesty of law and the order passed by this Court.
7. This Court on 5.6.2014 framed the following issues:
1. "Whether the respondents have intentionally and willfully disobeyed the orders passed by this Court on 3.5.2007 in CMP No. 169 of 2007 in RSA No. 110 of 2007?::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 7
2. Relief."
.
8. The applicant examined 6 witnesses and closed her evidence on 27.2.2015, whereas the respondents examined two witnesses and thereafter closed their evidence on 14.12.2016.
9. Rakesh Kumar (AW-1) was working as a Reader in the office of SDM, Dharamshala and has provedr on record the complaint Ex.AW-1/A (Annexure A-6). It has been specifically stated that alongwith this report photocopies of the order passed by this Court dated 3.5.2007 and the statements of Smt. Kaushalya Devi wife of Bhagwan Dass, Jagdish Chand son of Sh. Roshan Lal, Sudesh Kaur wife of Sh. Jadish Chand, Kaushalya Devi wife of Sh. Bishan Dass and the statement of Anjana Devi daughter of Bishan Dass were also enclosed.
10. Notably this witness despite opportunity having been granted was not cross-examined by the respondents.
11. AW-2 Krishan Chand, SI was posted as SI Police Station, Dharamshala at the relevant time and ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 8 has proved on record the complaint No. 3268 dated .
18.1.2014, which was received for investigation from the office of SDM, Dharamshala and was investigated by Inspector/SHO, Desh Raj. According to this witness, the final report after investigation was sent to the SDM, Dharamshala and the original of the same is Ex.AW-1/A (supra).
12.
r In cross-examination, the witness deposed that the aforesaid complaint was received in their office on 18.1.2014 itself and the statements of the witnesses were recorded on 19.1.2014, whereas the report Ex. AW-1/A was sent on 20.1.2014.
13. Sanjeev Kumar, Photographer has appeared as AW-3 and stated that he is a Photographer and running a shop at Tang Narwana and on the asking of the applicant, the photographs were clicked by him in the year 2003 when the eucalyptus tree was standing vide Ex.AW-3/A and AW-3/B. He further deposed that in the year 2012, he was again called by the applicant and he clicked photographs and by that time the tree had been ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 9 felled. He further stated that in the year 2014, he .
again clicked the photographs Ex.AW-3/D, AW-3/E and AW-3/F, which pertained to the construction being carried out on the spot. He clarified that since the photographs were clicked with digital camera, there are no negatives of the same. He also proved on record the photographs clicked on the very day Ex.AW-3/G and AW-3/H.
14. In cross-examination, the witness clarified that his shop is located near the place named Yol Camp at Tang proper. The spot from his shop is at a distance of 200-250 meters. He stated that he had raised a bill but had not brought the same. He further stated that all the three times, the photographs clicked by him were at the instance of the police. He feigned ignorance about the dispute inter se the parties.
15. AW-4 Lokender Singh Negi, a Police Inspector, who at the relevant time was posted as SHO Aut and stated that he had brought the summoned record. On 10.1.2012, he was posted at ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 10 Police Station, Dharamshala as I.O. and stated that .
he had received a complaint from the applicant, which was investigated by him per report Ex.AW-4/1.
The statements of two witnesses were recorded vide Ex.AW-4/2 and AW-4/3 respectively. The applicant had informed hat stay order had been granted by this Court, whereas the respondents stated that no such order had been passed. He further stated that there was no dispute on the spot regarding felling of eucalyptus tree. The respondents had stated that as the tree was posing danger to the property, she got the same felled. He further stated that none of the parties produced the stay order on the spot.
16. While being cross-examined, the witness stated that he was accompanied while visiting the spot by a Constable and final report was entered in the daily diary. He further clarified that the complaint was specifically marked by the Superintendent of Police since the complainant was not satisfied with the investigation that was carried out earlier. On the spot, he found one eucalyptus ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 11 tree, but he did not know on whose land it had been .
felled. Lastly, he stated that he carried out the investigation on the basis of statements of parties and found non-cognizable offence.
17. C.D. Rana has appeared as AW-5 and stated that he knows the applicant and the property in dispute. He had visited the property in the year 2007 when demarcation of the same was being carried. He has deposed that he had seen eucalyptus tree standing on the spot. He has specifically deposed that he was aware of the present litigation and also the stay order passed by this Court. He stated that on 14.1.2012, he again visited the spot when his car happened to break down there. It is then he noticed that some building material was lying over the suit land. He again visited the spot on 19.1.2012 when he saw some construction being carried out on the disputed land. He contacted the applicant and inquired about the construction being carried out despite stay order and he was informed by the applicant that the respondent was bent upon ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 12 to violate the order of this Court and despite repeated .
requests was raising the construction. He further deposed that he noticed that the tree which had been earlier standing on the suit land had been axed. He further deposed that he visited the spot again in January, 2014 and found that the construction had been completed in violation of the orders passed by this Court and was informed that such construction was being carried out by the respondent, her daughter and son-in-law.
18. In cross-examination, the witness stated that the distance between his house and the property in dispute was seven kilometers. He further stated that at the time of demarcation, he had gone to the spot on the asking of the applicant. He further deposed that he knew Anjala Kumari, daughter of the applicant, who was an employee in the Economics and Statistical Department. However, denied the suggestion that because the aforesaid department was tenant in his premises, therefore, he was deposing falsely in her favour. He denied the ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 13 suggestion that Anjala Kumari had helped him in .
letting out the premises in favour of the Department.
Volunteered to state that the Department of Economics and Statistical had in fact not taken his premises on rent.
19. AW-6 Anjala Kumari is the daughter of the applicant and has stated that she is the general power of attorney of her mother and has produced the original of Ex.AW-6/A. She stated that her mother Kaushalaya Devi is 85 years old and since she remains ill being heart patient and had fracture in the tibia region of her body, therefore, she is not in a position to move frequently. She further deposed that being unmarried she was living with her parents, therefore, is well conversant with the facts of the case. She proved on record the interim order passed by this Court Ex.AW-6/B. She further deposed that she had apprised the respondents about the interim order and requested them not to violate the same.
However, the respondents did not desist constraining her to lodge a complaint with the Superintendent of ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 14 Police, Kangra at Dharamshala on 20.1.2012 vide .
Ex.AW-6/C. She also stated that one eucalyptus tree standing over the land in dispute was cut by the respondents for which she lodged complaint Ex.AW-
6/C. The complaint was inquired into by the ASI Lokender Singh Negi, who had conducted the investigation. The police report in this regard is Ex.AW-1/A. r She further proved on record the statement of her mother Ex.AW-4/2 and that of Kaushalaya Devi respondent Ex.AW-4/E. On 14.1.2012, she informed the Deputy Commissioner, Kangra vide complaint Ex.AW-6/D that despite the stay order granted by this Court, the respondents have started the construction work over the land in dispute. Thereafter on 7.3.2012, she served the respondents Kaushalaya Devi with a legal notice Ex.AW-6/E. She also made a complaint against the respondents to the SDM, Dharamshala Ex.AW-1/A. The SDM in turn directed the police to conduct inquiry. The inquiry was conducted by SHO Desh Raj. The respondent during the inquiry revealed that ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 15 though she was aware of the stay order passed by .
this Court, however, as her house was in a dilapidated condition, therefore, she proceeded with the construction work. The witness has proved on record photographs Ex.AW-3/D to AW-3/H. She further deposed that she again made a complaint to the SDM vide Ex.AW-6/F on 9.2.2014. She again requested the respondent Kaushalaya Devi to stop the construction work but to no avail and to the contrary she was assaulted with axe by the respondent alongwith her daughter and son-in-law Jagdish. This constrained her to report the matter to the SHO, Dharamshala vide Ex.AW-6/G. Lastly, she has deposed that the respondents had completed the construction when the stay order was in operation and admitted that the appeal being RSA No. 110 of 2007 has now been dismissed.
20. In cross-examination, the witness stated that she has completed 30 years of service and had been working at Dharamshala for the last six years.
She further stated that the office of the Economics ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 16 and Statistical Department remained in a private .
accommodation for 25 years. The office remained housed in the house of one Sh. C.D. Rana for sometime and prior to that in the house of one Sh.
Dhiman at Khaniara, Dharamshala. She claimed to have known Sh. C.D. Rana for the last six years but denied the suggestion that she had produced Sh.
Rana as a witness in this application only on account of acquaintance with him. It is denied that the stay order passed by this Court had been ex-parte. She further denied the suggestion that Sh. B.S. Attri had not been engaged as a counsel by the respondents.
She further denied that her mother was not the owner of the land bearing Khasra No. 1678. She admitted that respondent was the owner in possession of Khasra Nos. 1679 to 1681 and denied the suggestion that her mother had purchased the land in the year 1988-1989 and that the house was constructed by the respondents in the year 1997.
The same was not in a dilapidated condition. She ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 17 further stated that the respondents had constructed .
a wall over her land.
21. The respondents examined RW-1 Shashi Kumar, who is alleged to have worked as a labourer with the respondents and stated that he had executed some work on behalf of the respondents when they had undertaken the construction work in the year 2012. He stated that nothing happened on 10.1.2012 and no fight or quarrel took place inter se the parties on the said date. He further deposed that both the parties had constructed their respective boundaries in front of their houses.
22. In cross-examination, he admitted that the respondents had completed their construction and the same was carried till May, 2012. He further deposed that the respondents had constructed one storey and volunteered to state that the construction was carried till May, 2012 and thereafter the same was stopped. He acknowledged photographs Ex.AW-
3/D to AW-3/H to be pertaining to the suit land but could not recognize the persons in Ex.AW-3/D. He ::: Downloaded on - 27/07/2017 23:58:32 :::HCHP 18 claimed to have been paid wages @ Rs. 250/- per day .
and has worked for about two months. He stated that receipt though had been prepared but was not brought as it was lying in his house. He further deposed that there were two other masons and 4-5 labourers, who had been engaged in the construction of three rooms. He admitted that while the construction was being carried out, the applicant and her daughter Anjala Kumari had objected to the same and even the police had reached the spot, but he was not aware whether the police had recorded the statement of certain witnesses. The police had come on the spot in the month of March, 2012. He has categorically stated that he was engaged in the construction by the respondents as depicted in photograph Ex.AW-3/F. He further admitted that respondents had cut the eucalyptus tree, which was cut during the period when he was working with the respondents. Though he could not tell the date but stated that the same was cut in the month of March, 2012.
::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 1923. Sudesh Kaur, one of the respondents has .
examined herself as RW-2 and has stated that the respondents were not aware of the order passed by this Court and learnt about the same only after the receipt of letter of B.S. Attri, Advocate and Sh. K.D. Sood, Advocate. She stated that her mother was bed ridden and could hardly work and moreover she was an illiterate. She deposed that after receipt of the letter they stopped the construction, which had been started.
24. In cross-examination, she stated that she could not produce the letter as has been referred by her in her examination as she was not in possession of such letter though claimed that the same had been written on 7.3.2012 and received by her on 12.3.2012. She has not handed over these letters to her counsel and thereafter volunteered to state that these had been handed over by her to her counsel.
She denied the suggestion that even after receipt of the letter they (respondents) had continued with the construction work. She stated that the police had ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 20 reached the spot on 11.1.2012 and at that time, they .
were cutting the tree and further stated that the construction was started only after the tree had been felled. The construction had commenced in January and continued till February and after the receipt of aforesaid letter the same was stopped. The construction was raised on pillars and the slab was placed in one day. The shuttering was removed after 21 days and thereafter after the construction was complete windows were placed. The eucalyptus tree was cut in the month of January, 2012 and similarly, the pillars shown in Ex.AW-3/F were laid in January, 2012. She further deposed that though she was not definite about the period of which the photographs Ex.AW-3/E and AW-3/D pertained, but according to her the same pertained to January or February and did not pertain to the period March, 2012, whereas Ex.AW-3/G and AW-3/H pertained to the period January, 2012. She admitted that applicant and her daughter had protested against the construction being raised by them and volunteered to state that ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 21 the police had come on the spot but he applicant had .
failed to produce the order passed by this Court. She further admitted that the respondents had continued with the construction even after the police had visited the spot but claimed that the police had not arrived at the spot when the construction was going on and only arrived in the month of January, 2012 at the time when the tree had been cut.
r She further deposed that the respondent came to know about the stay order only on 12.3.2012 when they obtained certified copy and handed over the same to their counsel. However, she stated that she could not produce the same as these were not available with the counsel. She further deposed that at the time when the respondents have moved an application for change of the counsel, they were not aware of the order passed by this Court. Lastly, she denied that despite having the knowledge of the stay order, the respondents continued with the construction and completed the same.
::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 2225. This, in entirety, is the evidence led by the .
parties.
26. Order 39 Rule 2-A of the Code reads thus:
2-A. Consequence of disobedience or breach of injunction.- (1) In the case of disobedience of any injunction granted or other Order made under rule 1 or 2 or breach of any of the terms on which the injunction was granted or the Order made, the court granting the injunction or making the order, or any court to which the Suit or proceeding is transferred, may Order the property of the person guilty of such disobedience or breach to be attached, and may also Order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the court directs his release.
(2) No attachment made under this rule shall remain in force for more than tone year at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.
27. In Attorney General v. Times Newspaper Ltd.; (1973) 3 All ER 54; Lord Diplock stated :
"There is an element of public policy in punishing civil contempt, since the administration of justice would be ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 23 undermined if the order of any court of law could be disregarded with impunity............"
.
28. What would be wilful disobedience was considered by the Hon'ble Supreme Court in Ashok Paper Kamgar Union v. Dharam Godha and Ors., (2003) 11 SCC 1, and the Hon'ble Supreme Court held that 'wilful disobedience' means an act or omission which is done voluntarily and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. According to the Hon'ble Supreme Court, it signifies the act done with evil intent or with a bad motive for the purpose.
It was observed that the act or omission has to be judged having regard to the facts and circumstances of each case.
29. In Kapildeo Prasad Sah and Ors. v.
State of Bihar and Ors., (1999) 7 SCC 569, the Hon'ble Supreme Court held that for holding a person to have committed contempt, it must be shown that there was wilful disobedience of the judgment or ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 24 order of the Court. But it was indicated that even .
negligence and carelessness may amount to contempt. It was further observed that issuance of notice for contempt of Court and power to punish are having far-reaching consequences, and as such, they should be resorted to only when a clear case of wilful disobedience of the court's order is made out. A petitioner who complains breach of Court's order must allege deliberate or contumacious disobedience of the Court's order and if such allegation is proved, contempt can be said to have been made out, not otherwise. The Court noted that power to punish for contempt is intended to maintain effective legal system. It is exercised to prevent perversion of the course of justice.
30. In Anil Ratan Sarkar and Ors. v. Hirak Ghosh and Ors., (2002) 4 SCC 21, the Hon'ble Supreme Court held that the Contempt of Courts Act has been introduced in the statute-book for securing confidence of people in the administration of justice.
If an order passed by a competent Court is clear and ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 25 unambiguous and not capable of more than one .
interpretation, disobedience or breach of such order would amount to contempt of Court. There can be no laxity in such a situation because otherwise the Court orders would become the subject of mockery.
Misunderstanding or own understanding of the Court's order would not be a permissible defence. The Hon'ble Supreme Court observed that power to punish a person for contempt is undoubtedly a powerful weapon in the hands of Judiciary but that by itself operates as a string of caution and cannot be used unless the Court is satisfied beyond doubt that the person has deliberately and intentionally violated the order of the Court. The power under the Act must be exercised with utmost care and caution and sparingly in the larger interest of the society and for proper administration of justice delivery system. Mere disobedience of an order is not enough to hold a person guilty of civil contempt. The element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act.
::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 2631. In Patel Rajnikant Dhulabhai and .
another vs Patel Chandrakant Dhulabhai and others, (2008) 14 SCC 561, the Hon'ble Supreme Court held that the power of a Court is punitive in nature akin to power to punish for civil contempt under the Contempt of Courts Act, 1971, therefore, such powers should be exercised with care and caution. At the same time it was reiterated that it is not only the power but the duty of the Court to uphold and maintain the dignity of Courts and majesty of law which may call for such extreme step.
If for proper administration of justice and to ensure due compliance with the orders passed by the Court, it is required to take a strict view under the Act, then it should not hesitate in wielding the potent weapon of contempt.
32. Bearing in mind the aforesaid exposition of law, I would now proceed to determine the factual matrix of the case.
33. It would be noticed that respondents had already filed a Caveat Petition at the time when RSA ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 27 No. 110 of 2007 came to be instituted. Therefore, .
when the appeal came up for consideration before this Court on 26.3.2007, only the Caveat Petition was allowed whereas the main appeal alongwith stay application was ordered to be listed after three weeks, as would be evident from the order, which reads thus:
"This caveat petition is allowed. Copies of the grounds of appeal and application have been supplied to the r learned counsel appearing for the Caveators.
At the request of learned vice counsel appearing for the appellant, list the appeal alongwith stay application after three weeks."
34. It is borne out from the record that on 11.4.2007, the counsel then representing the respondents wrote a letter to the respondents, which reads thus:
"Madam, That you had engaged me on 22.1.2007 as a counsel for filing a Caveat Petition under Section 148-A of CPC on your behalf in the Hon'ble High Court of Himachal Pradesh at Shimla in a matter i.e. Kaushalya Devi & Ors. Vs. Kaushalya Devi for defending the Regular Second Appeal which would be expected to be filed by non-caveator/plaintiff Kaushalya Devi W/o Bishan Dass R/o Village Balehan, Up-Muhal Narwan, Tehsil Dharamshala, Distt. Kangra (HP). The said caveat ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 28 was filed by me on your behalf in the Hon'ble High Court of Himachal Pradesh and the same was registered as .
Caveat Petition No. 55/2007. You have paid Rs.2,000/ only.
2. That in the second week of March, 2007 Smt. Kaushalya Devi W/o Bishan Dass appellant/plaintiff had filed RSA bearing No. 110/07 alongwith CMP bearing No. 169/07 under Order 39 Rule 1 & 2 read with Section 151 CPC praying therein injunction against you till the pendency of appeal. The said appeal was listed before the Hon'ble High Court of Himachal Pradesh for admission on 26.3.2007. Since I had filed Caveat Petition on your behalf alongwith Power of Attorney duly signed by all of you authorizing me to appear and defend the said Regular Second Appeal which would be filed by the plaintiff. Therefore, no notices were required to be issued to you. I appeared in the Hon'ble High Court on that day.
3. That I have duly intimated you about the filing of the RSA in the Hon'ble High Court of Himachal Pradesh. I have also intimated you about the filing of reply to the CMP, I have drafted the reply at your instance and again requested you for putting your initials on the said reply and affidavit annexed with the application. Despite several intimations you did not respond nor came to my office for doing the needful.
4. That the Caveat Petition was filed at your instance and Power of Attorney was also duly signed by all of you. Thereafter, I appeared on your behalf before the Hon'ble High Court of Himachal Pradesh for defending the RSA which has been filed by the appellant.
5. That all of you did not respond nor visited my office for taking further course of action in the matter which clearly amounts to negligence on your part. Any ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 29 order passed against you on the said CMP No. 169/07 annexed with RSA No. 110/07 would be entirely at your .
risk and cost and I will not be responsible for the same.
6. That for defending RSA you had not paid the counsel fee to me till date. Therefore, you are also called upon to pay a sum of Rs. 11,000( Rs. Eleven Thousand) only being the counsel fee for defending RSA No. 110/07 with CMP No. 169/07 within a period of 15 days from the receipt of this notice/intimation.
Yours faithfully, Sd/-
( Sh. "A") Advocate.
35. The appeal thereafter came for admission before this Court on 3.5.2007 when it proceeded to pass the following order:
"Heard learned counsel for the parties. Admit on the substantial questions of law as filed with the appeal.
CMP No. 169/2007.
This application has been filed by the appellant with the prayer that the respondents may be restrained from raising any construction. I have heard the learned counsel for the parties. It is directed that the parties to this appeal shall maintain status quo as existing today qua the nature and possession of the land as described in the application during the pendency of the appeal. The application is disposed of. Dasti copy on usual terms."
36. It appears that on 7.3.2012, the appellant handed over a copy of the application filed under order 39 Rule 2-A of the Code to then counsel Sh.
::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 30B.S. Attri, who upon receipt of the application wrote a .
registered letter to the respondents informing them about this fact. Subsequently, when the matter was listed before this Court on 22.3.2012, learned counsel representing the respondents sought permission to withdraw his power of attorney and this Court accordingly passed the following order:
r "Learned counsel appearing for the respondents seek permission to withdraw his power of attorney on behalf of the respondents. Permission granted. Kaushalya Devi and Sudesh Kumari respondents are present in Court. They pray for and are granted three weeks time to engage a counsel on their behalf. Order has been communicated to the respondents in the Court today. List after three weeks."
37. As would be noticed the specific defence of the respondents is that they were not aware of the orders passed by the Court as the same were never conveyed to them. However, the said contention is clearly belied by the record. The original order sheet of even date showed that the order had been duly acknowledged and in token thereof all the three respondents had appended their signatures.
::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 3138. Indisputedly, the respondents appeared in .
person before this Court on 22.3.2012 and yet they did not chose to level any allegation against their counsel, who according to them had not put in appearance on their behalf and only sought time to engage counsel because Sh B.S. Attri, Advocate had expressed his inability to continue with the case. It is thereafter the respondents engaged the services of Sh Ramesh Sharma and Sh. Jagdish Thakur, Advocates.
Not only this, Sh. B.S. Attri, Advocate had in fact by now already filed an application on 16.3.2012 for withdrawal of his power of attorney under order 3 Rule 4, sub rule (2) of the Code, which reads thus:
"An application under Order 3 Rule 4 Sub Rule 2 for the withdrawal of Power of Attorney filed on behalf of Respondents No. 1 to 3.
MAY IT PLEASE YOUR LORDSHIPS:-
1. That the applicant has been representing Respondents No. 1 to 3 in the above noted Regular Second Appeal pending before this Hon'ble Court. He has been duly authorized to defend the said Regular Second Appeal on behalf of respondents No. 1 to 3. The applicant had been informing the respondents from time to time about the case through registered post.
2. That an application under Order 39 Rule 2A read with Section 151 CPC had been received through ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 32 the counsel for the appellant. This fact was duly brought to the notice of Respondents No. 1 to 3 through .
registered letter on 9/3/2012 which was duly received.
3. That on 13/3/2012 the Respondent No.3 alongwith her husband visited the office of the applicant and had taken one set of record of the case.
4. That the respondents did not impart any instructions for defending the case nor thereafter visited the office of the applicant, hence the applicant has no other option except to withdraw of Power of Attorney and seek the leave of this Hon'ble Court for the withdrawal from the aforesaid case.
It is, therefore, prayed that this application may kindly be allowed and leave may be granted for the withdrawal of the Power of Attorney on behalf of Respondents No. 1 to 3 in the interest of justice."
39. Indubitably, in the reply filed to the application under order 39 Rule 2-A of the Code, which was filed on 16.5.2012, the respondents did submit that they were not aware of the order passed by this Court as the same was never conveyed to them. However, in the application subsequently filed on 15.10.2012 for the early hearing of the case, it was specifically stated as follows:
"......The applicants have been restrained from raising the construction. It is submitted that the applicants are raising the construction on their own land but under the garb of interim order, the non-applicant is not allowing ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 33 the applicants to proceed with the construction. It is submitted that the construction material is lying waste .
and the cement bags have already become useless. The cost of the construction is going high day by day and as such, the applicants are suffering both financially and mentally."
40. At this stage it would be noticed that all the aforesaid facts have already been taken not of by this Court while considering CMP No. 5798 of 2015, which was decided on 8.7.2015 and this Court proceeded to observe as under:
"18. In this background, the first and foremost question required to be determined is as to whether Sh. "A" had in fact been engaged by the applicants. A perusal of the caveat petition and thereafter the letter sent by Sh. "A"
on 11.4.2007 and 7.3.2012 coupled with the application for withdrawal from the proceedings on behalf of Sh. "A"
(CMP No. 202 of 2012), which was filed on 16.3.2012 and the presence of all the applicants before this court on 22.3.2012 alongwith Sh. "A" establishes beyond reasonable doubt that Sh. "A" had in fact been engaged by the applicants.
19. It is otherwise difficult to believe as to why Sh.
"A" without instructions from the applicants would of his own put in appearance on their behalf and oppose the passing of any interim order when the case was for the first time listed before this court on 26.3.2007. In case Sh. "A" had not been engaged by the applicants as is now being alleged then what prevented them from pointing out this fact to this court when they themselves ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 34 were present in the court alongwith Sh. "A" on 22.3.2012. If Sh. "A" had not been engaged as counsel .
then how was he in possession of the records of the case and on what basis did he file a detailed caveat petition and also put in appearance on behalf of the applicants. This aspect assumes significance because it is not at all the case of the applicants that they were totally unaware of the appeal having been preferred by the non- applicant.
20. The practice of frequently changing the Advocates and then filing applications which in some manner casts aspersion and assassinate the person and character of the earlier counsel have to be deprecated with a heavy hand for the purity of administration of law and salutary and healthy practice.
21. It is not fair to the court to change counsels frequently and file petitions because the counsel engaged subsequently may not be aware of what had transpired in the court at the earlier occasions. It may also amount to embarrassment to the court to hear the grievances of the party which has no basis and more particularly where a party does not furnish any material to substantiate the grounds taken in the subsequent applications.
22. The conduct of such a party is reprehensible and deserves not only to be deprecated but censured. A litigant cannot be permitted to drag the court in such a manner and force it to decide the case in a particular manner he wants.
23. This court expresses its grave concern over the procedure adopted by the applicants for the redressal of their grievances. It is salutary to note that the court spends valuable time in deciding the cases and this practice of changing the Advocates frequently and ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 35 thereafter filing the petitions only wastes the valuable time of the courts and has therefore to be deprecated .
and dealt with sternly.
24. The practice of filing applications and making uncharitable remarks against the Advocate, who was previously conducting the matter is all the more reprehensible. To my mind, even a lawyer must be very reluctant to take up a brief of this nature. In case for some reasons a change of lawyer is unavoidable, the newly engaged lawyer would owe it to himself and to the profession to have the statement of facts duly verified from the lawyer earlier conducting the case and only thereafter file application of the present kind. r 25. Another fact, which cannot be ignored is that in case Sh. "A" was a total stranger to the applicants, then why on his asking did they come to Shimla, then stand with him in the court on 22.3.2012 and still did not chose to make any complaint before this court at that time or within some reasonable time thereafter and why it is only when the third counsel was engaged that these allegations have been made that too after a period of three years, is not forthcoming. It was incumbent upon the applicants to satisfy this court that Sh. "A" had not been engaged as counsel by them. The applicants by moving the present application to say the least have abused the process of law and that apart, I even find the contents of the application to be absolutely false.
26. Since this court has not agreed with the contention of the applicants that they had not engaged Sh. "A" as their counsel, who had not only appeared on their behalf but also filed a caveat petition, therefore, necessity or requirement of examining the signatures and handwritings on the documents or sending them for comparison to the expert does not at all arise."
::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 3641. It is against this order that Review Petition .
No. 133 of 2015 has been preferred. Therefore, at this stage, I deem it proper to consider the Review Petition as it would have a definite bearing on the adjudication of the application under order 39 Rule 2-A of the Code bearing CMP No. 158 of 2012.
Review Petition No. 133 of 2015
42. By medium of this petition under section 114 read with order 47 of the Code, the respondents have sought review of the aforesaid order dated 8.7.2015.
43. However, before considering the merits of the petition, this Court is required to consider the scope of review.
44. Learned Division Bench of this Court in Kameshwar Sharma And Others vs State Of H. P. And Others 2017 (2) ILR (HP) 352 held as under:
" [5] It is beaten law of the land that the power of review has to be exercised sparingly and as per the mandate of Section 114 read with Order 47 Rule 1 CPC.
[6] A reference may be made to Section 114 CPC and Order 47 Rule 1 CPC herein:::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 37
"114. Review. Subject as aforesaid, any person considering himself aggrieved,-
.
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Court, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."
"ORDER XLVII REVIEW
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 ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 38 review of judgment to the Court which passed the decree or made the order.
.
(2) A party who is not appealing from a decree on order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
Explanation-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment."
[7] One of us (Mansoor Ahmad Mir, Chief Justice) as a Judge of the Jammu and Kashmir High Court, while sitting in Division Bench, authored a judgment in case titled as Muzamil Afzal Reshi versus State of J&K & Ors., Review (LPA) No.16/2009, decided on 29th March, 2013, in which it was laid down that power of review is to be exercised in limited circumstances and, that too, as per the mandate of Section 114 read with Order 47 CPC. It was further held that the review petition can be entertained only on the ground of error apparent on the face of the record. The error apparent on the face of record must be such which can be unveiled on mere looking at the record, without entering into the long drawn process of reasoning.
[8] A Division Bench of this Court has also laid down the similar principle in Review Petition No. 4084 of 2013, titled as M/s Harvel Agua India Private Limited versus ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 39 State of H.P. & Ors., decided on 9th July, 2014, and observed that for review of a judgment, error must be .
apparent on the face of the record; not which has to be explored and that it should not amount to rehearing of the case. It is apt to reproduce paragraph 11 of the judgment herein:
"11. The error contemplated under the rule is that the same should not require any long drawn process of reasoning.
The wrong decision can be subject to appeal to a higher form but a review is not permissible on the ground that court proceeded on wrong proposition of law.
It is not permissible for erroneous decision to be "reheard and corrected."
There is clear distinction between an erroneous decision and an error apparent on the face of the record. While the former can be corrected only by a higher form, the latter can be corrected by exercise of review jurisdiction.
A review of judgment is not maintainable if the only ground for review is that point is not dealt in correct perspective so long the point has been dealt with and answered. 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 of old and overruled arguments cannot create a ground for review. The present stage is not a virgin ground but review of an earlier order, which has the normal feature of finality."
::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 40[9] The Apex Court in case titled as Inderchand Jain (deceased by L.Rs.) versus Motilal (deceased by L.Rs.), .
2009 AIR(SCW) 5364, has observed that the Court, in a review petition, does not sit in appeal over its own order and rehearing of the matter is impermissible in law.
It is profitable to reproduce paragraph 10 of the judgment herein:
"10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order. Review is not appeal in disguise. In Lily Thomas v. Union of India, 2000 AIR(SC) 1650, this Court held:
"56. It follows, therefore, that the power of review can be exercised for correction of a mistake and 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 an appeal in disguise.""
[10] The Apex Court in case titled as Haryana State Industrial Development Corporation Ltd. versus Mawasi & Ors. Etc. Etc., 2012 AIR(SCW) 4222, has discussed the law on the subject right from beginning till the pronouncement of the judgment and laid down the principles how the power of review can be exercised. It is apt to reproduce paragraphs 9 to 18 of the said judgment hereunder:
::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 41"9. At this stage it will be apposite to observe that the power of review is a creature of the statute and no Court .
or quasijudicial body or administrative authority can review its judgment or order or decision unless it is legally empowered to do so. 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 Rules framed by this Court under that Article lay down that in civil cases, review lies on any of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure, 1908 which reads as under:
"Order 47, Rule 1:
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 ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 42 review of judgment to the court which passed the decree or made the order.
.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case of which he applies for the review.
Explanation The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment."
10. The aforesaid provisions have been interpreted in several cases. We shall notice some of them. In S. Nagaraj v. State of Karnataka, 1993 Supp4 SCC 595, this Court referred to the judgments in Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai, 1941 AIR(FC) 1 and Rajunder Narain Rae v. Bijai Govind Singh,1836 1 MooPC 117 and observed:
"Review literally and even judicially means reexamination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 43 could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In .
Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh that an order made by the Court was final and could not be altered:
"... nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in .... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies."
Basis for exercise of the power was stated in the same decision as under:
"It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 44 order has been inadvertently made as if the party had been heard."
.
Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality.
When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitutionmakers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power.
Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."
::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 4511. In Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, 1954 AIR(SC) 526, the threeJudge .
Bench referred to the provisions of the Travancore Code of Civil Procedure, which was similar to Order 47 Rule 1 CPC and observed:
"It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein.
It may allow a review on three specified grounds, namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record, and (iii) for any other sufficient reason.
It has been held by the Judicial Committee that the words "any other sufficient reason" must mean "a reason sufficient on grounds, at least analogous to those specified in the rule". See Chhajju Ram v. Neki, 1922 AIR(PC) 112 (D). This conclusion was reiterated by the Judicial Committee in Bisheshwar Pratap Sahi v. Parath Nath, 1934 AIR(PC) 213 (E) and was adopted by on Federal Court in Hari Shankar Pal v. Anath Nath Mitter, 1949 AIR(FC) 106 at pp. 110, 111 (F).
Learned counsel appearing in support of this appeal recognises the aforesaid limitations and submits that his ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 46 case comes within the ground of "mistake or error apparent on the face of the record" or some ground .
analogous thereto."
12. In Thungabhadra Industries Ltd. v. Govt. of A.P., 1964 5 SCR 174, another threeJudge Bench reiterated that the power of review is not analogous to the appellate power and observed (Para 11):
"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions, entertained about it, a clear case of error apparent on the face of the record would be made out."
13. In Aribam Tuleshwar Sharma v. Aibam Pishak Sharma, 1979 4 SCC 389, this Court answered in affirmative the question whether the High Court can review an order passed under Article 226 of the Constitution and proceeded to observe (Para 3):
"But, there are definitive limits to the exercise of the power of review. The power of review 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 order was made; it may be exercised where some mistake or error apparent on the face of the record is ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 47 found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that .
the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court."
14. In Meera Bhanja v. Nirmala Kumari Choudhury, 1995 1 SCC 170, the Court considered as to what can be characterised as an error apparent on the fact of the record and observed (Para 8):
" .it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any longdrawn process of reasoning on points where there may conceivably be two opinions.
We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v.
Mallikarjun Bhavanappa Tirumale, 1960 AIR(SC) 137 wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:
"An error which has to be established by a longdrawn 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 selfevident 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 ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 48 governing the powers of the superior court to issue such a writ."
.
15. In Parsion Devi v. Sumitri Devi, 1997 8 SCC 715, the Court observed:
"An error which is not selfevident 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 Rule 1 CPC .. A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise"."
16. In Lily Thomas v. Union of India, 2000 6 SCC 224, R.P. Sethi, J., who concurred with S. Saghir Ahmad, J., summarised the scope of the power of review in the following words (Para 15):
"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 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."
17. In Haridas Das v. Usha Rani Banik, 2006 4 SCC 78, the Court observed (Para 13):
"The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 49 a rehearing "on account of some mistake or error apparent on the face of the records or for any other .
sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict."
18. In State of West Bengal v. Kamal Sengupta, 2008 8 SCC 612, the Court considered the question whether a Tribunal established under the Administrative Tribunals Act, 1985 can review its decision, referred to Section 22(3) of that Act, some of the judicial precedents and observed (Para 14):
"At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.
The term "mistake or error apparent" by its very connotation signifies an error which is evident per se ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 50 from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts .
or the legal position. If an error is not selfevident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment / decision.""
[11] The Apex Court in another judgment in the case titled as Akhilesh Yadav versus Vishwanath Chaturvedi & Ors., 2013 AIR (SCW) 1316, has held that scope of review petition is very limited and submissions made on questions of fact cannot be a ground to review the order. It was further observed that review of an order is permissible only if some mistake or error is apparent on the face of the record, which has to be decided on the facts of each and every case. Further held that an erroneous decision, by itself, does not warrant review of each decision. It is apt to reproduce paragraph 1 of the said judgment hereunder:
"Certain questions of fact and law were raised on behalf of the parties when the review petitions were heard. Review petitions are ordinarily restricted to the confines of the principles enunciated in Order 47 of the Code of Civil Procedure, but in this case, we gave counsel for the parties ample opportunity to satisfy us that the ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 51 judgment and order under review suffered from any error apparent on the face of the record and that .
permitting the order to stand would occasion a failure of justice or that the judgment suffered from some material irregularity which required correction in review. The scope of a review petition is very limited and the submissions advanced were made mainly on questions of fact. As has been repeatedly indicated by this Court, review of a judgment on account of some mistake or error apparent on the face of the record is permissible, but an error apparent on the face of the record has to be decided on the facts of each case as an erroneous decision by itself does not warrant a review of each decision. In order to appreciate the decision rendered on the several review petitions which were taken up together for consideration, it is necessary to give a background in which the judgment and order under review came to be rendered."
[12] The same principle has been laid down by this Court in Review Petition No. 65 of 2015, titled as Union of India & others versus Paras Ram, decided on 25th June, 2015; Review Petition No. 115 of 2015, titled as Surjeet Kumar and others versus State of H.P. and others, decided on 16th March, 2016; Review Petition No. 20 of 2016, titled as Onkar Singh versus Executive Engineer, HPSEB Ltd. and another, decided on 12th May, 2016; and Review Petition No. 54 of 2015, titled as State of Himachal Pradesh and others versus Sh. Jitender Kumar Mahindroo (since deceased) through LRs, decided on 12th May, 2016."
::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 5245. The parameters with regard to the .
maintainability or non-maintainability of the review petition were thereafter again considered by a Division Bench of this Court in Review Petition No. 39 of 2016, wherein this Court laid down the following:
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;
r (ii) Mistake or error apparent on the face of the record'
(iii) Any other sufficient reason.
(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 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.::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 53
(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.
(x) Review is not maintainable on the basis of a subsequent decision/judgment of a coordinate or larger Bench of the Court or of a superior Court.
(xi) While considering an application for review, court must confine its adjudication with regard to the material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
(xii) Mere discovery of a new or important matter or evidence is not sufficient ground for review. The parties seeking review has also to show that such mater or evidence was not within its knowledge and even after exercise of due diligence, the same could not be produced before the Court earlier."
46. Tested on the aforesaid exposition of law, in case the petition filed by the respondents is adverted to, it would be noticed that it does not set out or even call upon any ingredients either of section 114 or order 47 of the Code. An error, if any, committed by this Court, has not been pointed out and that apart no reason for filing the application has ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 54 been set out. It is more than settled that power of .
review has to be exercised sparingly and with great circumspection and once the application does not even fall within the contours of parameters of review as envisaged under the Code, the application being devoid of any merit is dismissed as such.
47. Now, adverting to the evidence led by the parties, even if the evidence of the applicant herself is ignored for a moment, it would be noticed that AW-
1 and AW-2 have proved on record the complaint Ex.AW-1/A whereas the Photographer has duly proved the photographs, which goes to show that not only the eucalyptus tree had been felled but even the construction had been carried by the respondents despite the orders passed by this Court on 3.5.2007 in CMP No. 169/2007. Likewise, AW-4 Lokender Singh Negi has also proved on record the report submitted by him vide Ex.AW-4/A and has further proved on record that the respondents had cut the tree only on the pretext that it was posing danger to her property.
::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 5548. AW-6 Anjala Kumari, the daughter and .
General Power of Attorney of the applicant, has proved the case of the applicant to the hilt as is evident from the statement, which has been discussed in detail in paragraphs 18 and 19 (supra).
49. That apart, even if the statements of the general power of attorney of the applicant and witnesses are ignored and kept aside for sometime even then it would be noticed that RW-1, who was labourer engaged by the respondents has completely demolished the case of the respondents. In cross-
examination, this witness has clearly stated that the construction being raised by the respondents was carried out till May, 2012 and had deposed that the respondents had constructed one storey, whereas the interim order had already been passed on 3.5.2007.
Not only this, he further admitted that the applicant and her daughter Anjala Kumari had objected to the construction and even the police had come to the spot in the month of March, 2012. He further stated that he had been engaged as a Labourer in the month ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 56 of January, 2012 and admitted that eucalyptus tree .
had been cut after he had been engaged by the respondents.
50. As regards the statement of Sudesh Kaur, one of the respondents, her testimony has been discussed in paragraphs 22 and 23 (supra) and would show that she is simply deposing in air as she has no document(s) to prove her case. Moreover, her statement otherwise does not inspire confidence and is contrary to record.
51. On the basis of the pleadings and oral as well as documentary evidence, as have been discussed above, it is clearly evident that the respondents have disobeyed the interim order passed by this Court on 3.5.2007 by not only cutting down the eucalyptus tree but also have raised construction in violation of the order, which was duly brought to their notice by the applicant.
52. The primary object of Rule 2-A of Order 39 of the Code is not to punish a person, who has disobeyed the order of injunction, but to enforce the ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 57 order. Wilful disobedience, no doubt, invites wrath of .
penal action as envisaged in the said provision, hence, where any action is done in violation of a order or stay or injunction, it is the duty of the Court, as a policy, to set the wrong right and not to allow perpetuation of the wrong doing. These provisions are intended to maintain majesty of judicial order, to preserve rule of law and to ensure faith of litigants in the administration of justice. It is a curative provision and its purpose is to ensure that the direction of the Court is implemented, disobedience of order is remedied and status quo ante is restored.
53. It is surprising, if not shocking, that inspite of the application lying pending for such a long time and despite the respondents having sufficient time at their disposal neither tendered apology nor offered to purge the contempt. There is no remorse whatsoever on their part. Therefore, this Court is left with no other option to allow the application by directing the respondents to first purge the contempt.
::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 5854. In this background, the next question that .
arises for consideration is as to how a contemnor can purge himself for contempt. In Pravin C. Shah vs. K.A. Mohd. Ali and another (2001) 8 SCC 650, one of the questions which came up for consideration was as to how a contemnor can purge himself for the contempt, although the Hon'ble Supreme Court in the said case was dealing with a criminal contempt.
However, the relevant portion of the judgment reads as under:
"23. Now we have to consider the crucial question - How can a contemnor purge himself of the contempt?
According to the Disciplinary Committee of the Bar Council of India, purging oneself of contempt can be done by apologising to the court. The said opinion of the Bar Council of India can be seen from the following portion of the impugned order: "Purging oneself of contempt can be only by regretting or apologising in the case of a completed action of criminal contempt. If it is a case of civil contempt, by subsequent compliance with the orders or directions the contempt can be purged off. There is no procedural provision in law to get purged of contempt by an order of an appropriate court.
24. Purging is a process by which an undesirable element is expelled either from ones own self or from a society. It is a cleansing process. Purge is a word which acquired implications first in theological connotations. In the case of a sin, purging of such sin is made through ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 59 the expression of sincere remorse coupled with doing the penance required. In the case of a guilt, purging means .
to get himself cleared of the guilt. The concept of purgatory was evolved from the word purge, which is a state of suffering after this life in which those souls, who depart this life with their deadly sins, are purified and render fit to enter into heaven where nothing defiled enters. (vide Words and Phrases, Permanent Edn., Vol.35A, page 307). In Blacks Law Dictionary the word purge is given the following meaning: To cleanse; to clear or exonerate from some charge or imputation of guilt, or from a contempt. It is preposterous to suggest that if the convicted person undergoes punishment or if he tenders the fine amount imposed on him the purge would be completed.
25. We are told that a learned single Judge of the Allahabad High Court has expressed a view that purging process would be completed when the contemnor undergoes the penalty (vide Dr. Madan Gopal Gupta vs. The Agra University and ors., AIR 1974 Allahabad 39). This is what the learned single Judge said about it:
"In my opinion a party in contempt purged its contempt by obeying the orders of the court or by undergoing the penalty imposed by the court."
26. Obeying the orders of the court would be a mode by which one can make the purging process in a substantial manner when it is a civil contempt. Even for such a civil contempt the purging process would not be treated as completed merely by the contemnor undergoing the penalty imposed on him unless he has obeyed the order of the court or he has undone the wrong. If that is the position in regard to civil contempt the position regarding criminal contempt must be stronger. Section 2 of the Contempt of Courts Act ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 60 categorises contempt of court into two categories. The first category is civil contempt which is the willful .
disobedience of the order of the court including breach of an undertaking given to the court. But criminal contempt includes doing any act whatsoever which tends to scandalise or lowers the authority of any court, or tends to interfere with the due course of a judicial proceeding or interferes with, or obstructs the administration of justice in any other manner.
27. We cannot therefore approve the view that merely undergoing the penalty imposed on a contemnor is sufficient to complete the process of purging himself of the contempt, particularly in a case where the contemnor is convicted of criminal contempt. The danger in giving accord to the said view of the learned single Judge in the afore-cited decision is that if a contemnor is sentenced to a fine he can immediately pay it and continue to commit contempt in the same court, and then again pay the fine and persist with his contemptuous conduct. There must be something more to be done to get oneself purged of the contempt when it is a case of criminal contempt."
55. It is not only the power but the duty of the Court to uphold and maintain the dignity of courts and majesty of law even though the same may call for extreme step. If for proper administration of justice and to ensure due compliance with the orders passed by this Court, it is required to take strict view under ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP 61 the Act, I see no reason why I should hesitate in .
wielding the potent weapon of contempt.
56. In the light of the aforesaid discussion, an opportunity is afforded to the respondents to first purge the contempt by demolishing the structure raised during the pendency of the appeal and report compliance before the next date of hearing, on which date the Court shall consider the further course of action to be taken in this case.
List on 3.8.2017.
(Tarlok Singh Chauhan), Judge.
27.7. 2017 *awasthi* ::: Downloaded on - 27/07/2017 23:58:33 :::HCHP