RESERVED HIGH COURT OF UTTARAKHAND AT NAINITAL REVIEW APPLICATION NO. 394 OF 2008 IN CIVIL REVISION NO. 61 OF 2007 Smt. Munni Goyal ….Revisionist Vs. Kashmiri Lal ….Respondent 23.6.2008 Hon’ble Rajesh Tandon, J. Heard Shri B.C. Pandey, Sr. Advocate assisted by Shri G.K. Verma, counsel for the review applicant and Shri H.M. Bhatia holding the brief of Shri Arvind Vashisht, counsel for the respondent. 2. Revision was argued by Shri B.S. Negi, counsel for the respondent and the same was decided on 18.3.2008 but now the order was sought to be reviews by Shri B.C. Pandey, Sr. Advocate assisted by Shri G.K. Verma, counsel on behalf of the applicant-respondent. 3. By the present review application, the applicant has prayed for reviewing the judgment dated 18.3.2008 passed by me by which the civil revision was allowed. The applicant has sought the review of the judgment dated 18.3.2008 on the following grounds:- “1. Because the suit was filed in the year 2000 by the plaintiff which was signed on 1.5.2000, much before 2 the expiry of the fixed term lease, hence the same was not maintainable at all. 2. Because even if right of forfeiture of tenancy during the term of lease be assumed the same, than no notice of forfeiture of tenancy was ever given as provided under section 114 of Transfer of Property Act. 3. Because the alleged notice under section 106 of Transfer of Property Act even if be treated as a notice under section 114 (which is not) than the provision of section 114 (the principle whereof are similar to principle under sub section B of Sub Section 4 of Section 20 of Act No. 13 of 1972 will apply) and the court is under a legal obligation to relieve the tenant from the liability of eviction. 4. Because this Hon’ble Court having held that the provisions of rent act does not apply to building in suit the right of the tenant under section 114 of the Transfer of Property Act was not fettered or superseded by the provisions of rent act and provision of section 114 shall apply specially so when the suit has been filed before expiry of the fixed term deed. 5. Because the aforesaid aspect of the case has not been given due weightage and was resulted in a decree which is patently against it the law and against all the tenets of justice and tents to set as naught the very purpose of a fixed term of lease. 6. Because neither the counsel for the respondent/Review Petitioner nor the respondent/Review Petitioner have ever giving undertaking before this Hon’ble Court for seeking time to vacate the premises/building in dispute. 3 7. Because the Review Petition is within limitation and the proper court fees has also been paid.” 4. So far as ground no. 1 is concerned, the suit was filed in the year 2000 but later on the amendment was made in paragraph 9 to the following effect :- “9 , & ;g fd nkSjku eqdnek izfroknh ds Ik{k esa fu"ikfnr iathd`r fdjk;kukek tks fd fnukad 29-4-1998 dks lc jftLVªkj flrkjxat esa iathd`r gS] dh le;kof/k lekIr gks pqdh gS A” 5. Further, in paragraph no. 11 of the plaint, by virtue of amendment, it has been added to the following effect:- “nkSjku eqdnek fdjk;kukek dh vof/k fnukad 30-122002 dks lekIr gks tkus ls Hkh okn dk dkj.k yxkrkj tkjh gS A” 6. Since the suit has been filed simplicitor on the ground that the Act NO. 13 of 1972 has no application in the present case, therefore, I have already held that the suit was maintainable. Furthermore, the lease deed provides that the tenancy shall be on month to month basis and there shall be increase of 5 per cent rent every year and the tenant having failed to pay the same, the suit filed by the plaintiff was maintainable. The lease has also expired in the year 2002 but the defendant having not vacated the premises, the suit has been decreed. 7. So far as ground nos. 2, 3 and 4 are concerned, no such pleadings were taken either in the written statement or in the arguments advanced at the time of hearing of the revision. Section 114 of the Transfer of Property Act has no application in the present case inasmuch as notice under Section 106 of the Transfer of Property Act having been given by terminating the tenancy, no further notice was required. 4 8. Although, neither there is any applicability of Section 114 of the Transfer of Property Act nor the same was ever taken in the trial court or revisional court, but I am considering the argument of the counsel for the review-applicant. 9. I have already discussed the provisions of Section 114 of Transfer of Property Act in Kumaun Plaza Pvt. Ltd. V. Dr. Arvind Sharma [2003 (2) ARC 290]. The same is quoted below: “30. Similarly in Laxman Deo v. District Judge, Nainital, 2000 (2) ARC 32, it has been held as under:- “It has been found that the petitioner is not entitled to the benefit of Section 114 of the Act as the lease was not determined on the ground that it has a right to re-enter the premises under the forfeiture clause under the tenancy. Respondent No. 1 rightly decree the suit.” 31. Similarly in Ram Bali Pandey v. 2nd Addl. District Judge, Kanpur, 1998 (2) ARC 362, it has been held that for the applicability of Section 114, the existence of an agreement containing a stipulation empowering the landlord to re-enter is essential. Relevant observations are quoted below: “For the applicability of Section 114, existence of an agreement containing a stipulation empowering the landlord to re-enter in the demised premises in case of breach of a condition regarding payment of rent is essential. In the present case there was no such agreement and as U.P. Act No. 3/47 was not applicable to the premises, there was simpliciter termination of tenancy under Section 106 T.P. Act serving a notice there under. The mere 5 fact that the notice stated about non payment of rent also besides by exercising the power under clause (h) of Section 111 of the T.P. Act. No authority is required for the proposition that where there is simpliciter termination of tenancy under Section 106 of the T.P. Act and not under Section 111 (g) of the T.P. Act then provision of Section 114 of the T.P. Act, cannot be attracted.” Thus in absence of any stipulation with regard to re- entry, in my opinion the tenant is not entitled for the benefit of Section 114 A of Transfer of Property Act and the findings of the learned Judge Small Cause Court while giving the benefit of Section 114 A of Transfer of Properties Act cannot be sustained. 32. Apart from the aforesaid, it has been held in Vannattankandy Ibrayi, 2001 (1) ARC 325, where the reliance has been made of, 1993 (3) SCC 271, it has been held that provisions contained under the Rent Control Act being a special provision would exclude the operation of Section 114 of the Transfer of Properties Act. The observations of the Apex Court are as under:- “In Prithvichand Ramchand Sablok v. S.Y. Shinde, 1993 (3) SCC 271:1993 SCFBRC 283, it was held that the provisions contained under the Rent Control Act being a special provision would exclude the operation of Section 114 of the Transfer of Property Act. In substance it was held that a building cannot be governed by the provisions of two Acts, one by the State Rent Act and other by the Transfer of Property Act.” 6 From the aforesaid decisions there is no doubt that if a building is governed by the State Rent Act the tenant cannot claim benefit of the provisions of Sections 106, 108 and 114 of the Act. 33. In the light of the judgment of the Apex Court since the Special Act i.e. Rent Control Act gives benefit to the landlord in cases which falls under the exemption from operation of the Act and, therefore, in view of provisions of Section 38 of U.P. Act No. 13 of 1972, it will exclude the applicability of Section 114 of Transfer of Property Act. Section 38 reads as under:- “The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act, 1882 (Act No. IV of 1882), or in the Code of Civil Procedure, 1908 (Act No. V of 1908).” 10. In view of the aforesaid, even after considering Section 114 of the Transfer of Property Act, no case for review is made out. 11. So far as ground nos. 5, 6 and 7 are concerned, as the Act no. 13 of 1972 has no application, therefore, the provisions of Section 20 (4) are not applicable and the review application is liable to be rejected. 12. Counsel for the review applicant has referred the judgment of Kedar Lal Seal and another v. Hari Lal Seal AIR (39) 1952 SC 47. The aforesaid case law is not applicable in the present case inasmuch as it is a review and cannot be treated to be rehearing of the case in view of the judgment of the Apex Court in M/S Northern India Cateres (India) 7 Ltd. v. Lt. Governor of Delhi, (1978) 4 SCC 36; Parison Devi v. Sumitri Devi, (1997) 8 SCC 715 and Union of India v. Paul Manicram AIR 2003 SC 4622. 13. The Hon’ble Apex Court in the case M/S Northern India Cateres (India) Ltd. v. Lt. Governor of Delhi, (1978) 4 SCC 36 has observed as under: “It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: G.L. Gupta v. D.N. Mehta15. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi. Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the 8 nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”: Sow Chandra Kante v. Sheikh Habib (1975) 3 SCR 935.”. 14. In the case Parison Devi v. Sumitri Devi, (1997) 8 SCC 715 Hon’ble Supreme Court has held that while exercising power under Order XL VII Rule 1 of the Code of Civil Procedure it is not permissible for erroneous decision to be re- heard and corrected and the power of review cannot be exercised to be an appeal in disguise. Hon’ble Supreme has observed as under: It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. (SCR at p. 186) this Court opined: “What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an ‘error apparent on the face of the record’). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an ‘error apparent on the face of the record’, for there is a distinction which is real, though it might not always 9 be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by ‘error apparent’. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.” 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 of 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 a limited purpose and cannot be allowed to be “an appeal in disguise”. 15. In view of the aforesaid, I find no merit in review application, review application, therefore, is dismissed. No order as to costs. 16. However, the execution of the decree shall remain in abeyance for a period of six weeks from the delivery of judgment. (Rajesh Tandon, J.) 23.6.2008 Avneet