In a review application regarding an undertaking to vacate premises, the court rejected the plea that new information about ownership obtained post-undertaking via RTI justified a review for lack of due diligence.
Application for review of order dated 14.03.2024 and consequent condonation of delay dismissed.
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Neutral Citation No. - 2024:AHC-LKO:69337
Court No. - 5
Case :- CIVIL MISC REVIEW APPLICATION DEFECTIVE No. - 180 of 2024
Applicant :- Rajesh Gupta And Another Opposite Party :- Balram Singh And 5 Others Counsel for Applicant :- Santosh Kumar Tripathi,Anurag Shukla
Hon'ble Abdul Moin,J.
(Application No.1 of 2024)
1 . This is an application for condonation of delay in filing the review application.
2 . Heard Shri Anurag Shukla, and Shri Santosh Kumar Tripathi, learned counsels for the applicants.
3 . The reasons indicated in the affidavit filed in support of the application are sufficient.
4 . Accordingly, the application is allowed and delay in filing the review application is hereby condoned.
(Order on Memo)
5 . Supplementary affidavit filed today is taken on record.
6 . Instant review application has been filed praying for review of the order dated 14.03.2024 passed by this Court in the Matter u/s 227 No.925 of 2024 In re Rajesh Gupta & Anr vs Balram Singh & & 7 Ors.
7 . For the sake of convenience, the order dated 14.03.2024 is reproduced hereunder:-
"Supplementary affidavit filed today by Shri Anurag Shukla, learned counsel for the petitioners is taken on record.
In paragraph 7 of the aforesaid supplementary affidavit it has been contended that the petitioners may be granted time till 30.04.2024 to vacate the accommodation in question.
A further undertaking is given that they would be vacating the premises on or before 30.04.2024.
Shri R. P. Shukla and Shri Krishna Singh, learned counsel for the respondents no. 1 to 4 states that they are wiling to give time upto 30.04.2024 to the petitioners to vacate the premises in dispute.
Considering the undertaking of vacating the premises by 30.04.2024
which is also agreed to by learned counsels for the respondents, the petition is disposed of.
It is provided that the petitioners will hand over the possession of premises to the respondents by or on 30.04.2024.
In case of violation of undertaking given by the petitioners it would be open for the respondents to have the undertaking executed in accordance with law."
8 . From perusal of the order dated 14.03.2024, it emerges that an undertaking had been given by the petitioners-review applicants of vacating the premises by 30.04.2024 and that they would be handing over the possession of the premises to the respondents by or on 30.04.2024.
9 . Instant review application has been filed primarily on the ground that the father of the respondents in the petition is not the owner of the premises in dispute, which fact could not be indicated to the Court in the petition filed earlier and the said undertaking had been given before this Court in ignorance. Further, as the father of the respondents is not the owner of the premises in dispute consequently any undertaking that had been given by the petitioners under the wrong presumption of the father of the respondents being the owner, as recorded by this Court in the order dated 14.03.2024 merits to be recalled and that the review application may be allowed.
10 . In this regard, reliance has been placed on various documents as have been filed by the review applicants to indicate the fact that the father of the respondents is not the owner of the premises in dispute, which fact has only come to the knowledge of the applicants herein only subsequent to the order of this Court dated 14.03.2024 and said facts were never in the knowledge prior to or on the date when the order dated 14.03.2024 was passed.
11 . Elaborating the same, Shri Anurag Shukla, learned counsel states that it is only when the applicants-petitioners applied under Right to Information Act on 05.04.2024 that the aforesaid facts had come to the knowledge of the applicants. In this regard, reliance has been placed on the judgment of the Supreme Court in the case of Subhash
Chandra vs Mohd Sharif & Ors : 1990 Supp 1 SCC 150 to argue that the tenant can always attack the derivative title of the landlord. 12 . Reliance has also been placed on the judgment of Division Bench of the Calcutta High Court in the case of Sambhunath Mishra vs Khaitan Consultant Ltd : 2005 2 CHN 519 .
13 . Having heard learned counsel for the petitioners and having perused the record, it emerges that when the petition under Article 227 was filed by the applicants an undertaking had been given on behalf of the petitioners-review applicants that they may be granted time till 30.04.2024 to vacate the premises in question which undertaking had been recorded by this Court in the order dated 15.03.2024.
14 . Now, instant review application has been filed contending that on account of the information received under Right to Information Act which information was applied on 05.04.2024 i.e. subsequent to the order dated 15.03.2024 whereby the undertaking had been recorded and on account of subsequent developments, it has come to the knowledge of the review applicants that the father of the respondents in the petition is not the owner of the premises in dispute and consequently, the respondent in the petition could not be construed to be owner and thus the undertaking given by the applicants and the order dated 15.03.2024 of this Court merits to be recalled.
15 . In this regard, judgment of the Hon'ble Supreme Court in the case of Subhash Chandra (supra) has been relied on.
16 . There can be no dispute to the proposition of law as laid down by the Hon'ble Supreme Court in the case of Subhash Chandra (supra) . However, the case of Subhash Chandra (supra) arose on account of a decree of eviction passed by the Madya Pradesh High Court for evicting of the appellant therein from the house holding him to be the tenant.
17 . The said principle of law will not be applicable in the facts of the instant case inasmuch as at the time of filing of earlier petition the review applicants-petitioners had not disputed the ownership of the
respondents therein to the house in question.
18 . An undertaking had been given before this Court for vacating the premises on or before a particular date which undertaking had been recorded.
19 . Now the instant review application has been filed on the basis of the information as had been obtained by the review applicants under Right to Information Act which is subsequent to the undertaking recorded by this Court in the order dated 15.03.2024.
20 . Admittedly, the principles of Order 47 Rule 1 are applicable for the purpose of a review application.
21 . For the sake of convenience, Order 47 Rule 1 is reproduced 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 of the Court which passed the decree or made the order."
22 . The principle governing the review clearly provides that a review would lie from discovery of a new or important matter of evidence which was not within the knowledge of the review applicants or which could not be produced by him at the time when decree was passed yet sine qua non to the said information or knowledge is that the information or knowledge was not available despite exercise of due diligence .
23 . In the instant case, it does not emerge as to what prevented the review applicants-petitioners from getting the information under Right to Information Act prior to filing of the petition itself. It is only when the undertaking had been recorded by this Court on 14.03.2024, that the petitioners-review applicants appear to have woken up and have applied under Right to Information Act which information is now sought to be placed before this Court by means of review application. Thus, it cannot be said that there was 'due diligence' on their part in order to seek review of the order dated 14.03.2014 on the said principle.
24 . Further, in case such a 'strategy' of filing of review despite there being no due diligence is permitted by this Court despite the undertaking having been given by the petitioners, it would amount to opening of a new dispute, which was clearly not there at the time said undertaking had been given by the petitioners before this Court.
25 . Keeping in view the aforesaid discussion, no case for review is made out. The application is accordingly dismissed .
Order Date :- 15.10.2024 prateek
Digitally signed by :- PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether discovery of absence of landlord owner via RTI application after undertaking recording constitutes new evidence for review due diligence.
Whether filing review based on post-undertaking RTI information amounts to opening new dispute.
Colour shows how this judgement treated each authority
Subhash Chandra vs Mohd Sharif & OrsDistinguished¶27
Subhash Chandra vs Mohd Sharif & Ors : 1990 Supp 1 SCC 150 · Who else cites this
Sambhunath Mishra vs Khaitan Consultant LtdReferred¶27
Sambhunath Mishra vs Khaitan Consultant Ltd : 2005 2 CHN 519
Rajesh Gupta And Another
Rohit Kumar Sahu,J.
As recorded by the court registry
2 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
