Allowed

Smt Krishna Devi Agrawal (Bansal) v. Leela Ram Soni

Chhattisgarh HC7 Oct 2023REVP/116/2021

Case brief

AI extract

What is this about?

This High Court allowed a review petition, recalling a prior judgment which had set aside a trial court decree by relying on a revenue order admitted as additional evidence without a proper procedural order, constituting an error apparent on the record.

What did the court decide?

The judgment dated 26.03.2019 in First Appeal No.162 of 2005 is recalled and the appeal is restored to its original number listed for hearing.

Smt Krishna Devi Agrawal (Bansal) Vs Leela Ram Soni — Specific Performance | Chhattisgarh HC (2023)

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AFR

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Order reserved on 07.07.2023 Order pronounced on 07.10.2023

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HIGH COURT OF CHHATTISGARH, BILASPUR REVP No. 116 of 2021

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Smt. Krishna Devi Agrawal (Bansal) W/o Shri Suresh Kumar Bansal Aged About 58 Years Presently Resident of Friends Colony, Raigarh, District Raigarh Chhattisgarh, Through Power Of Attorney Holder Namely Suresh Kumar Bansal Son Of Santlal Bansal, Aged Around 64 Years, Presently Resident Of Friends Colony, Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh

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---- Petitioner

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Versus

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1. Leela Ram Soni S/o Late Manohar Soni Aged About 65 Years Resident Of Itwari Bazar, Raigarh, Tahsil And District Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh

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1. State Of Chhattisgarh Through The District Collector, Raigarh, District Raigarh, Chhattisgarh

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	---- Respondents
___________________________ For the Petitioner	______________________________ : Mr. Hari Agrawal, Advocate
For the Respondent No.1	: Mr. Anand Dadriya, Advocate
For the State/R-2	: Mr. Raghvendra Verma, G. A.

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Hon'ble Shri Justice Sachin Singh Rajput, CAV ORDER

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1. This review petition is arising out of judgment and decree dated 26.03.2019 passed by this Court in FA No.162 of 2005 by which the appeal of respondent No.1 was allowed by this Court and decree of specific performance was granted in his favour.

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1. Learned counsel for the petitioner submitted that a civil suit was filed against the petitioner herein by respondent No.1 for specific performance of contract for a land comprised in pieces of land bearing

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Survey No.242/2, area admeasuring 1.62 Hectare situated at VillageSambalpuri, Tahsil & District Raigarh (CG). The civil suit was registered as Civil Suit No.43-A/2001. He submitted that an agreement for sale of the suit property was executed on 11.08.2000 between the petitioner and respondent No.1 for a sale consideration of Rs.80,000/and according to the agreement so executed, Rs.40,000/- was paid as advance sum and Rs.40,000/- was to be paid at the time of execution of sale deed. He submitted that when the sale deed was not executed in terms of agreement, the said civil suit was filed for specific performance of contract. The petitioner herein remained ex-parte before the learned trial Court and after adducing the evidence, the trial Court dismissed the suit of respondent No.1 holding that the said property subsequently stood vested with the State Government. Thereafter, though the other issue with regard to execution of sale agreement, readiness and willingness was decided in favour of respondent No.1 but as stated above, the said suit was dismissed on account of the property being vested with the Government by order of the Collector, Raigarh.

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1. Thereafter respondent No.1 filed FA No.162 of 2005 which remained pending before this Court for all these years, the petitioner was noticed and he entered her appearance through her counsel. Learned counsel for the petitioner further submitted that an application under Order 41 Rule 27 of the Civil Procedure Code, 1908 (for short “CPC”) was filed by respondent No.1 herein along with an order of the Board of Revenue dated 04.04.2008 by which the order of the Collector was set aside. When the appeal came up for hearing on 26.03.2019, no representation was made on behalf of the petitioner herein who was respondent No.1

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in the appeal and this Court allowed the said appeal holding that by virtue of order of Board of Revenue which is a part of record, the land vested with the petitioner herein, and since all issues were decided in favour of respondent No.1, the appeal was allowed and impugned judgment and decree of the trial Court was set aside.

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He submitted that while allowing the appeal filed by respondent No.1, this Court placed reliance upon the order of Board of Revenue without passing any order under Order 41 Rule 27 CPC making it to be an additional evidence in the appeal. He submits that in order to rely upon the said document at least the Court ought to have allowed the application or some whisper ought to have been made in the judgment itself in order to demonstrate that order of Board of Revenue filed along with application is treated as an additional evidence. He further submitted that if the Court without following procedure prescribed under Order 41 Rule 27 CPC places his reliance upon any document, it is manifest error on record which could be corrected in the review petition filed by the petitioner. In order to substantiate his submissions in this regard, he placed reliance upon the judgment of Hon’ble Supreme Court in case of Corporation of Madras and another Vs. M. Parthasarathy and others reported in (2018) 9 SCC 445. He further submitted that since it is a manifest error on record and scope of review though limited but in the facts and circumstances of the case, this Court can very well review the final judgment of this Court and pass an appropriate order in this regard. So far as the scope of review is concerned, he placed reliance upon the judgment of Hon’ble Supreme Court in case of Parsion Devi and Ors. Vs. Sumitri Devi and Ors. reported in (1997) 8 SCC 715 which is recently followed in case of S.

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Madhusudhan Reddy Vs. Narayana Reddy and Ors reported in 2022 SCC Online SC 1034. He also placed reliance upon the case of State of Andhra Pradesh and Ors Vs. Ranga Reddy (Dead) by Legal representatives and Ors. reported in (2020) 15 SCC 681.

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1. Mr. Dadariya, learned counsel for respondent No.1 combating the submissions made by counsel for the petitioner vehemently argued that this Court has not committed any error much less error apparent on record which would warrant interference by this Court in the findings recorded by this Court while passing the impugned judgment. He further submitted that provision of Order 41 Rule 27 CPC is not mandatory as it speaks from its language that it is in the domain of the appellate Court to allow such an application or to refuse it.

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1. He further submitted that, since the Order 41 Rule 27 CPC is not mandatory in nature, there is no mistake committed by this Court while placing reliance upon the order of Board of Revenue. He submitted that for taking additional evidence an application was filed in the year 2011 itself, therefore, respondents were well within the knowledge that an application for taking additional evidence has already been filed. In fact, he submitted, that the order dated 04.04.2008 is in the favour of the petitioner herein, since the petitioner has not challenged the findings with regard to execution of the sale agreement and therefore, no harm would be caused to her if this order is relied by this Court while deciding the appeal. He submitted that even assuming that no express order allowing this application under Order 41 Rule 27 CPC is passed but from perusal of paragraph 5 judgment, it is quite manifest that in fact the Court has exercised its power and permitted it to be

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treated as an additional evidence. Therefore, in view of judgment of Hon’ble Supreme Court in case of K. Venkataramiah Vs. Seetharama Reddy and Ors. reported in AIR 1963 SC 1526, as provision of Order 41 Rule 47 of CPC is not mandatory, no manifest error is apparent on record. He submitted that the provision of Order 47 Rule 1 CPC is very limited and fact of the case does not project that such a review could be granted by this Court.

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1. He submitted that if the petitioner was proceeded ex-parte before this Court, she could have very well filed an application for rehearing of the appeal before the same Court but his remedy cannot rest in the review petition as it rests somewhere else. Since the certified copy of revenue proceeding was filed and it is a public document and it can be presumed to be genuine in view of Section 79 of Evidence Act, 1872. Therefore, this Court has not committed any apparent error in relying upon such document. To buttress his submissions, he also placed reliance in case of Madhusudhan Reddy (Supra) and in case of

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Inderchand Jain (Dead) Through LR. Vs. Motilal (Dead) Through

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Lrs. reported in (2009) SCC 663.

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1. Heard the learned counsel for the parties, considered their rival submissions, perused the record. In order to appreciate the controversy between the parties, it is desirable to quote the provisions of Order 47 Rule 1 of CPC :-

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ORDER XLVII- REVIEW

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1. Application for review of judgment — (1) Any person considering himself aggrieved—

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(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

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(b) by a decree or order from which no appeal is allowed, or

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(c) by a decision on a reference from a Court of Small Causes,

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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 of for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

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(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 on which he applies for the review.

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1[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.]

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The scope of review has been dealt with by Hon’ble the Supreme Court

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in case of Parsion Devi (Supra) in Para 9 which is quoted below:-

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“9.Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident 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 review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has limited purpose and cannot be allowed to be "an appeal in disguise."

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The Hon’ble Supreme Court in case of Inderchand Jain (Supra)

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paragraphs 10, 11 & 24 held as under:-

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“10.It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A re-hearing of

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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.

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11.Review is not appeal in disguise In Lily Thomas v. Union of India [AIR 2000 SC 1650], this Court held :

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“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."

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XXXX

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24.An appeal is a continuation of the suit. Any decision taken by the appellate court would relate back unless a contrary intention is shown to the date of institution of the suit. There cannot be any doubt that the appellate court while exercising its appellate jurisdiction would be entitled to take into consideration the subsequent events for the purpose of moulding the relief as envisaged under Order 7, Rule 7 read with Order 41, Rule 33 of the Code of Civil Procedure. The same shall, however, not mean that the court would proceed to do so in a review application despite holding that the plaintiff was not entitled to grant of a decree for specific performance of contract.”

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Relying upon various judgments on the power and scope of review, the

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Hon’ble Supreme Court in case of Madhusudhan Reddy (Supra) in paragraph 31 observed as under:-

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“31. As can be seen from the above exposition of law, it has been consistently held by this Court in several judicial pronouncements that the Court's jurisdiction of review, is not the same as that of an appeal. A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise its powers of review under Order XLVII Rule 1 CPC. In the guise of exercising powers of review, the Court can correct a mistake but not substitute the view taken earlier merely because there is a

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possibility of taking two views in a matter. A judgment may also be open to review when any new or important matter of evidence has emerged after passing of the judgment, subject to the condition that such evidence was not within the knowledge of the party seeking review or could not be produced by it when the order was made despite undertaking an exercise of due diligence. There is a clear distinction between an erroneous decision as against an error apparent on the face of the record. An erroneous decision can be corrected by the Superior Court, however an error apparent on the face of the record can only be corrected by exercising review jurisdiction. Yet another circumstance referred to in Order XLVII Rule 1 for reviewing a judgment has been described as “for any other sufficient reason”. The said phrase has been explained to mean “a reason sufficient on grounds, at least analogous to those specified in the rule” (Refer : Chajju Ram v. Neki Ram AIR 1922 PC 112 and Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius 1955 SCR 250).”

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1. In case of Corporation of Madras (Supra) the Hon’ble Supreme Court held that once additional evidence is permitted at appellate stage, other side must be given opportunity to lead rebuttal evidence to counter additional evidence. Appellate courts have two options (i) to take recourse remanding entire matter under Or. 41 R. 23-A for retrial, or (ii) to make limited remand under Or. 41 R. 25 by retaining main appeal with itself so that parties can lead evidence on particular issues in light of additional evidence and then to decide main appeal on merits.

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1. From perusal of above authoritative pronouncement, it is well established that the scope of review is very narrow and it cannot be invoked for appreciation of evidence or the findings could be tested in disguise of an appeal. The only thing which this Court has to look into is as to whether from perusal of judgment/order any manifest/apparent error on record is seen or not. The issue involved in this case is with

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regard to admissibility of certified copy of order of Board of Revenue which was filed along with application under Order 41 Rule 27 CPC and no specific order by allowing such an application was passed. The rejection of the suit of respondent No.1 before the trial Court was on the ground that since after the execution of agreement, the suit property was vested with the State Government and no decree of specific performance could be granted. However, during the pendency of the appeal, the said order of the Collector was set aside by Board of Revenue in the revenue proceeding, that order was filed to be taken as an additional evidence in appeal by an application under Order 41 Rule 27 CPC by the appellant. It is also not in dispute that the said application was filed in the year 2011 and the same has to be taken up for hearing during the course of final hearing.

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1. Learned counsel for respondent vehemently tried to persuade this Court that no specific order requires to be passed. As provision of Order 41 Rule 27 is not mandatory in nature in view of judgment in case of K. Venkataramiah (Supra), placing reliance on such document while passing the judgment would mean that the application for taking additional evidence is considered and allowed. In case of K. Venkataramiah (Supra) the Hon’ble Supreme Court considered the issue that the High Court did not record its reasons for the admission of the additional evidence as required by the second clause of Rule 27 of Order 41 of CPC. It was held that word “ shall ” is used in Rule 27 (2); but that by itself does not make it mandatory. It was further held that the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission. Therefore, the

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legal preposition which is emerging that omission to record reasons to admit additional evidence would not vitiate such admission.

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1. No order was passed by this Court on application for additional evidence. In the Judgment dated 26.09.2019 under review no finding was recorded with regard to admission of additional evidence. In paragraph 5 of the Judgment, this Court has relied the order of Board of Revenue. Paragraph 5 of Judgment under review is quoted below:-

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“5. The trial Court recorded finding that land was recorded in the name of Government vide order of the Collector, but it is clear from record that the said order of Collector is set aside by the Board of Revenue as mentioned above, therefore, order of the Collector is now ineffective and there is nothing which prevent the appellant to get executed the sale deed in his favour of the land in question.”

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1. The learned counsel for the respondent no.1 heavily emphasized that

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the additional documents placed on record by filing the application under Order 41 Rule 27 of CPC can be considered as genuine in view of Section 79 of Evidence Act, 1872, which is noticed herein below:-

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“79. Presumption as to genuineness of certified copies .— The Court shall presume [to be genuine] every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer [of the Central Government or of a State Government, or by any officer [in the State of Jammu and Kashmir] who is duly authorized thereto by the Central Government]:

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Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

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The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper.

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1. True it is that Court shall presume to be genuine a certified copy. But the issue involve in this petition is not with regard to genuineness of the document filed as additional document but whether such document is admitted as additional evidence in appeal without there being any order in this regard. Hence, the submission in this regard is liable to be rejected.

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1. Before additional evidence is relied upon by the appellate Court, an order admitting should be passed or it should reflect in the judgment with regard to admission of the same. Therefore, manifest/apparent error has surfaced that no order admitting the additional evidence in appeal was passed on application under order 41 Rule 27 of CPC. Even in the judgment under review specifically does not reflect that before placing reliance on additional evidence; it was admitted in appeal for the purposes of adjudication of appeal on merits. In this context reference is made to a judgment of the Hon’ble Supreme Court in case

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of Board Of Control For Cricket in India and Another Vs. Netaji Cricket Club & Ors. reported in (2005) 4 SCC 741 in paragraph 89 and 90 as under:-

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“89. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

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Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47,

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Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravab”.

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1. As a fall out of the above discussion, this review petition is allowed. The Judgment dated 26.03.2019 passed in First Appeal No.162 of 2005 is hereby recalled. The appeal is restored to its original number. Since the appeal is of year 2005, let the record of the trial court be called forthwith and the appeal be listed for hearing along-with record expeditiously.

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No order as to cost.

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Sd/-

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(Sachin Singh Rajput)

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Judge

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Parul

Smt Krishna Devi Agrawal (Bansal) v. Leela Ram Soni

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Smt Krishna Devi Agrawal (Bansal) v. Leela Ram Soni

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