1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD REVIW APPLICATION NO.42 OF 2009 IN WRIT PETITION NO. 156 OF 1989 KAUSALYABAI KISAN CHOUHAN V/S SAKHARAM NAMDEO GAIKWAD ... Shri S.D.Kulkarni, Advocate for petitioner and Shri P.M.Shah, Sr. Advocate i/b Shri S.P.Shah for respondents. ... CORAM : S.B.DESHMUKH,J. Dated : 21.10.2010 PER COURT :- 1. Heard learned counsel for the respective parties. 2. Rule. By consent, Rule made returnable forthwith. 3. Petitioner, by this application, seeks review of the order passed by this Court on 16.2.2009 in Writ Petition No.156 of 1989. Petitioner also seeks remand of the matter to the trial Court with direction to decide the matter afresh in view of the changed circumstances by considering the requirements of the heirs, if any. 4. This Civil Application appears to have been filed by tenant on 2.3.2009. In response to the notices issued by this Court, all 2 respondents have entered their appearances. Shri S.P.Shah, Advocate has filed affidavit in reply on behalf of respondents. It has been sworn by one Purushottam Gaikwad on 7.5.2009. Thereafter, on behalf of the petitioner, additional affidavit has been filed, sworn in by Kausalyabai Chavan on 23.7.2010. Some documents have been placed on record along with this additional affidavit of the petitioner. Affidavit on behalf of respondents is also on record (Page 44) affirmed by Prakash Gaikwad on 8.10.2010. 5. Shri Kulkarni, learned Advocate for the petitioner submitted that Writ Petition No.156 of 1989, initially was filed at Mumbai in 1985. On establishment of this Bench at Aurangabad, said petition was transferred and re-registered as above. According to learned counsel Shri Kulkarni, this petition was pending before this Court for about 23 long years. Hearing of the petition was protracted by the landlords i.e. respondents. On 16.2.2009, this Court has heard the matter and passed an order, review of which is sought by the petitioner. Shri Kulkarni, learned Advocate for the petitioner submitted that on that day he himself was not feeling well and therefore, not present before the Court to address the Court and his colleague Shri S.S.Kulkarni was before the Court who was also not prepared and was asking time. This Court, however, considering the pendency of the Writ Petition for substantial time, asked him to address the Court and read the judgment. That is how, according to learned counsel Shri Kulkarni, his 3 colleague read the judgment. He emphatically submitted that no other lawyers appearing for respondents, especially learned advocates appearing for the landlords were present before the Court and did not insist for hearing of the petition nor advanced submissions. Even though it is a Writ Petition, Shri Kulkarni, learned Advocate points out that the State of Maharashtra is not a party and therefore, there was no occasion for learned Assistant Government Pleader to address the Court. This is the ground on which Shri Kulkarni, learned Advocate seeks review of the order dated 16.2.2009. Another ground raised by Shri Kulkarni is discovery of new material after passing of the order of this court dt. 16.2.2009. Apart from these two grounds, he also invited my attention to ground Nos.(IX) and (X) raised in this civil application, which read as under :- (IX) It ought to have been considered that during the pendency of the Writ Petition the respondent no.1 expired on 21.10.1992 and his heirs were already brought on record, the respondent no.5 has expired on 08.06.1994 and his heirs were already brought on record, the respondent no.3 has expired on 31.01.1996 and his heirs were already brought on record and hence unless and until the requirement of this 14 heirs is ascertained by remanding the matter to the trial court as laid down by the full bench and the division bench of this Honourable High Court which are referred above no decree for possession can be passed in favour of the heirs, this being a beneficial legislation for the benefit of the tenant and considering the object of Act and unless and until 4 the requirement is proved and the tenant who is in possession cannot be deprived of his possession. (X) It ought to have been considered that already the necessary material which is required for deciding the effect of subsequent events during the pendency of the proceedings is brought on record by filing an affidavit along with the supporting documents and there is no challenge to the above statements by the respondents and hence the petitioner is entitled for those benefits in view of the law laid down by the Honourable High Court and Honourable Supreme Court. Shri Kulkarni, learned counsel for the petitioner relied upon the judgment in the case of Board of Control for Cricket Vs. Netaji Cricket Club [AIR 2005 SC 592] Paragraphs 88 to 92. I have considered the facts and ratio of the said judgment. 6. Shri Shah, learned Sr. Advocate submitted that these two grounds cannot be considered to be the grounds available for review. In support of this submission, he relied upon the judgment of the Supreme Court in the matter of Shakuntalabai and others Vs. Narayan Das and others [(2004) 5 SCC 772]. Indisputably, the issue in that matter had arisen under the provisions of the Rent Act. In the case on hand, dispute amongst the parties is in relation to rights of the parties to the agricultural lands in accordance with the Bombay Tenancy and 5 Agricultural Lands Act, 1948. In my opinion, the judgment relied upon by Shri Shah, Sr. Advocate can be distinguished on facts. However, these two grounds, in my opinion, cannot be considered to be the grounds for review within the parameters of Order XLVII read with Section 114 of the Code of Civil Procedure ("CPC"). 7. The ground urged by Shri Kulkarni, learned Advocate that he was not available and the matter has been argued by his colleague, who was not even acquainted with the facts of the case and absence of Advocates appearing for contesting respondents/landlords, in my view, is material. In support of this ground, Shri Kulkarni, learned Advocate took me to the additional affidavit of the petitioner (Page 33). Paragraph "N" of the said affidavit reads as under :- "(N). The petitioner states that apart from the above facts, the Advocate, who was appearing for the petitioner, was not feeling well and hence, all the material along with the legal position was not pointed out to this Honourable High Court and hence in view of the above circumstances, it is a fit case for exercising the review jurisdiction with a view to give justice to the petitioner who is old lady and is fighting this litigation since more than 30 years." 8. Procedural review is an issue, which can be considered by this Court. It belongs to a different category. So far procedural review is 6 concerned, it is apposite at this stage to usefully make a reference to the judgment of the Honourable Supreme Court in the case of Kapra Mazdoor Ekta Union Vs. Management of M/s Birla Cotton [ AIR 2005 SC 1782]. Paragraph No.19 of the said judgment, which is material, is reproduced herein below. "Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi 7 judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again." 9. Shri Shah, learned Sr. Advocate submitted that the application for review cannot be favourably considered within the parameters of Order XLVII read with Section 114 of CPC. In support of his submissions, he relied upon the various judgments. First one is the judgment in the case of Promoters & Builders Association of Pune Vs. Pune Municipal Corporation [(2007) 6 SCC 143]. Attention of this Court has been invited to paragraph No.13 of the said judgment. I have considered the facts available in this judgment and more specifically paragraph No.13. The legal position, so far review is concerned, is that a review of an 8 earlier order is not permissible unless the Court is satisfied that material error, manifest on the face of the order undermines its soundness or results in miscarriage of justice. Paragraph No 13 of the said judgment, reads as under : "As was observed by this Court in Col. Avtar Singh Sekhon v. Union of India [(1980) Supp. SCC 562] review is not a routine procedure. A review of an earlier order is not permissible unless the Court is satisfied that material error, manifest on the face of the order undermines its soundness or results in miscarriage of justice. A review of judgment in a case 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 ..... The stage of review is not a virgin ground but review of an earlier order which has the normal feature of finality. This view has been reiterated in Devender Pal Singh v. State (2003) 2 SCC 501 (para 16). This being the legal position, there is absolutely no ground for review of the judgment and order dated 5.5.2004. The review petitions are, therefore, liable to be dismissed. " Another is the judgment in the case of Haridas Das Vs. Usha Rani [(2006) 4 SCC 78]. Shri Shah, learned Sr. Advocate took me to paragraph No.13 of the said judgment, wherein, the Honourable Supreme Court has held; " In order to appreciate the scope of a review, Section 114 9 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit." The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for 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. This is amply evident from the explanation in Rule 1 of the Order XLVII which states that 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. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. This Court in M/s. Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh [AIR 1964 1372] held as follows: "There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be 10 characterized 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. Where without any elaborate argument one could point to the error and say here is a substantial point of law which states 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." I have considered the facts and ratio of this judgment carefully. Next judgment, cited by Shri Shah, learned Sr. Advocate is in the case of S.N.S.(Minerals) Ltd. Vs. Union of India [(2007) 12 SCC 132]. Parameters of review have been considered by the Supreme Court in the said case. I was taken to paragraph No.8 of this judgment. In this judgment also, the Honourable Supreme Court has referred to its earlier judgment in the case of Haridas Das (supra). Shri Shah, learned Sr.Advocate further took me to paragraph No.8 of the judgment of the Honourable Supreme Court in the case of Meera Bhanja Vs. Nirmala Kumari [(1995) 1 SCC 170]. I have given thoughtful consideration to the facts and ratio laid down in this judgment. In this judgment, the Supreme Court has held that the power of review may not be exercised on the ground that the decision was erroneous on merits and that it would be the province of a court of appeal. 11 Lastly, Shri Shah, learned Sr. Advocate submitted that the order passed by the revisional Court under the provisions of the Bombay Tenancy and Agricultural Lands Act with limited scope was subject matter of the Writ Petition under Article 227 of the Constitution of India, further limiting the scope of interference by this Court. He has further submitted that this Writ Petition has been disposed of and now this review application under Section 114 read with Order XLVII of CPC has further restricted scope for interference by this Court. So far Article 227 of the Constitution of India and powers of review are concerned, he relied upon the judgment of the Supreme Court in the case Shalini Shyam Shetty Vs. Rajendra Shahkar Patil [(2010) 8 SCC 329]. I have given thoughtful consideration to the submissions of Shri Shah, learned Sr. Advocate for the respondents. I have considered the parameters of Order XLVII read with Section 114 of CPC and the judgments of the Supreme Court, which are referred to in the foregoing paragraphs of this order. Shri Shah, learned Sr. Advocate fairly conceded the position that on 16.2.2009, he was not present before the Court. According to him, there was no occasion for him. Shri S.P.Shah, learned Advocate also admits that he was not present before the Court on 1.6.2009. He neither insisted this Court for hearing of the Writ Petition nor addressed the Court on merits of the case. 10. So far the ground raised by Shri Kulkarni, learned Advocate that he was not feeling well and did not address the Court and his 12 colleague appeared before the Court has not been confuted on behalf of respondents/landlords is concerned, I have, with the able assistance of the learned counsel for the parties, gone through the judgment and order of this Court, sought to be reviewed. This order dated 16.2.2009 records that Shri S.S.Kulkarni, Advocate holding for Shri S.D.Kulkarni Advocate, appears for the petitioner. I have seen the appearances recorded by this Court on 16.2.2009. Relevant is the non appearance or absence of Shri Subodh P. Shah, learned Advocate for contesting respondents 3(a) to 3(h). Specifically it has been mentioned in the appearances clause of the said judgment that learned Advocate for respondents 3(a) to 3(h) is absent. In paragraph No.10 of this order, it has been observed by this Court, that learned counsel for the petitioner is not in a position to give date of death of the landlord. Submission of Shri S.D.Kulkarni, learned Advocate for the petitioner that the Advocate who was present before the Court on 16.2.2009 was not prepared and even was not acquainted with the facts of the case, can be said to have been substantiated by absence of learned counsel for respondents/landlords and observations made by this Court in paragraph No.10 of the order. In my view, the first ground raised by Shri S.D.Kulkarni, learned Advocate for the petitioner in review, can be fairly accepted. 11. Another ground put forth by learned counsel Shri Kulkarni is discovery of new evidence. For this proposition he took me to the additional affidavit of the petitioner In the said affidavit. More 13 specifically paragraph Nos.(A) to (H) have been pointed out by him to me to show that the landlords/respondents have dealt with disposal of the lands in question and have taken steps for disposal of the lands. Clause (A) of the said affidavit makes a reference to the transactions for disposal/sale of the disputed land. Date is relevant i.e. 31.12.2009, which is the date after the judgment sought to be reviewed dated 16.2.2009. In my view, this ground may be considered being the subsequent fact after order passed by this Court but may not be helpful to the petitioner in its entirety to seek the review. Transaction shown in clause (B) is dated 27.8.1996. I am not recording the details of the transaction but the relevant is the fact that it is a part of the subject matter of the Writ Petition and more important is the aspect that transaction is entered into before Notary. Same is the position in relation to transactions at clauses (C) dated 20.2.2008, (D) dated 27.8.1996, (E) dated 28.2.2008, (F) dated 27.8.1996, (G) dated 17.8.1996 and (H) dated 28.2.2008. 12. Shri Shah, learned Sr. Advocate took me to the affidavit filed by the petitioner in Writ Petition proper. In fact, it is an additional affidavit of the petitioner. It is at page 46 of the Writ Petition. It has been affirmed by one Nayan Kisan Chavan. Shri Shah, learned Sr. Advocate took me to paragraph No.2. He points out that Exhibits A/1 to A/3 and B/1 to C/3 are the copies of the plaints placed on record by the petitioner. According to him, all these transactions were of the year 2008 and various suits are pending before the Civil Court. The petitioner, in 14 some of the suits, is a party - defendant. According to him, therefore, this cannot be contended by the petitioner, now, that it is a discovery of new matter or evidence. With the assistance of learned Sr. Advocate, I have gone through all these plaints. 13. In my opinion, copies of the plaints to which the petitioner is a party, though they are placed on record by the petitioner, can be considered for the fact of presentation of the plaint, pleadings raised and reliefs prayed. The actual transactions by the documents which are notarized have been referred to by him. Notarized documents has its own advantages and dis-advantages. Access to these documents to third party is very limited. The nature of the transaction recorded in the document can be understood or perceived by the petitioner if the petitioner has got an opportunity to see or have an access to the documents. In my opinion, notarized documents are the transactions entered into by the landlords/respondents with the strangers in relation to the property, subject matter of present review application. The claim of the petitioner that he has discovered this evidence after the judgment in the Writ Petition, in my view, can be accepted. Apart from this there are two registered documents, one sale deed at clause (A), which I am not favourably considering in favour of the petitioner. Another document is a registered agreement, that also I am not considering favourably in favour of the petitioner because certified copies of the registered documents could be obtained from the office of Sub-Registrar. 15 14. In my opinion, two grounds can be accepted. Firstly; learned Advocate for the petitioner was not before the Court since he was not feeling well and his colleague argued the matter and no Advocate for the respondents was present in the Court nor insisted for hearing of the matter. Therefore, the procedure followed by the Court on 16.2.2009 suffers from illegality vitiating the proceeding and invalidating the order passed on 16.2.2009. Second ground is as regards the discovery of material and evidence. Notarized documents which are received by the petitioner after delivery of the judgment can be accepted within the parameters of Order XLVII read with Section 114 of CPC. Shri S.P.Shah, learned Advocate on record for respondents submits that since the first ground is being accepted, submissions so far notarized documents are concerned are curtailed. Factually this is not correct. Shri P.M.Shah, learned Sr. Advocate has taken me through the petition, copies of the plaint placed on record etc. In this situation, it is difficult to accept this contention. All in all, I am inclined to review the order by recalling the said order in the light of the above observations. 15. In the result, Review Application is partly allowed. The order passed by this Court in Writ Petition No.156 of 1989 on 16.2.2009 stands recalled. Prayer made by the petitioner to remand the matter to trial Court stands rejected. In view of the recalling of the order dated 16.2.2009, passed in Writ Petition No.156 of 1989, the position would be 16 that the Writ Petition stands restored on the file of the learned Single Bench of this Court obtaining the position of 16.2.2009. I make it clear that I have not entered into the merits of Writ Petition while passing this order. All points of all parties, so far Writ Petition is concerned, are kept open to be argued before the learned Single Bench of this Court. Rule made partly absolute. No order as to costs. ( S.B.DESHMUKH, J.) ... akl