ra189.2009 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. REVIEW APPLICATION NO.189 OF 2009. IN WRIT PETITION NO.5829 OF 2008 Pramod s/o Kashinath Salunkhe, age 41 years, Occu. Service, r/o Mayur Colony, Plot No.36/B, Deopur, Dhule, District Dhule. ..REVIEW PETITIONER. VERSUS 1. Rajendra Kashinath Salunkhe, age 58 years, Occu. Agri., r/o Deshmukh Nagar, Pimple Road, Amalner, Taluka Amalner, District Jalgaon. 2. Naval Ananda Patil, age 53 years, Occu. Agri., r/o at post Mathgavhan, Taluka Amalner, Dist.Jalgaon. 3. Sanjay Kashinath Salunkhe, age 45 years, Occu. Agri., r/o Suman Apartment, Plot No.1, Adarsh Colony, Behind Indira Garden, Deopur, Dhule, Dist. Dhule. ..RESPONDENTS. ... Shri Sandeep S. Deshmukh, Advocate for petitioner. Shri S.P. Shah, Advocate for Respondents 1 & 3. Shri Hemant F. Pawar, Advocate for R.No.2. ... ra189.2009 2 CORAM: S.S. SHINDE,J. RESERVED ON: 11th JANUARY, 2011. PRONOUNCED ON : 14th JANUARY, 2011. PER COURT: 1. This review petition is filed by the petitioner praying for review of the order dated 9th October, 2009 passed by this Court in Writ Petition No.5829 of 2008, thereby dismissing the said writ petition. The petitioner seeks review of the order dated 9th October, 2009 on the following grounds, which read thus: “I) As to whether this Hon’ble Court is correct in passing the order of dismissal of Writ Petition No.5829 of 2008. II) As to whether this Hon’ble Court is correct in not considering the facts and circumstances of the present case in hand. III) As to whether this Hon’ble Court is correct in not appreciating the provision of section 65 of Indian Evidence Act. ra189.2009 3 IV) As to whether this Hon’ble Court is correct in not appreciating that though the Review petitioner had taken efforts for placing the original relinquish deed on record, which is in possession of the Respondent No.1 and 3, despite this the same has not been produced by the Respondent No.1 and 3, hence the Review Petitioner did not have any other option but to prefer an application for treating the certified copies of the relinquish deed as secondary evidence and to rely the same in evidence by taking appropriate steps. v) As to whether this Hon’ble Court is correct in not appreciating that even before preferring the application below Exh.114, the Review Petitioner had issued one notice under Order 12 Rule 2 of C.P.C. so as to requesting the Respondent No.1 and 3 to produce the original relinquish deed on record, however this Hon’ble Court further erred in not appreciating that since the said relinquish deed is tried to be proved by the Review Petitioner against the Respondent No.1 and 3. VI) As to whether this Hon’ble Court is correct in not appreciating that the relinquish deed has already been acted upon by the Respondent No.1 and 3 by making an ra189.2009 4 application for recording the name of Review Petitioner in respect of the plot situate in Dhule, before the revenue authority and subsequently mutation entry No.5094 is effected in pursuance thereof. VII) As to whether this Hon’ble Court is correct in not appreciating that, after considering the factual matrix about possession of relinquish deed, it would be amply clear that the Respondent No.1 and 3 possess the same and are deliberately not producing it on record and further the court of law is denying the present Review Petitioner to lead evidence on certified copy of said relinquish deed. This Hon’ble Court also further erred in not appreciating that if the Review Petitioner’s application below Exh.114 is not allowed then the Review Petitioner will be placed in no mans land.” 2. Heard learned Counsel for the review petitioner as also the learned Counsel for the respondents. 3. The learned Counsel for the review petitioner, relying on the grounds taken in the review petition, submits that the review ra189.2009 5 petitioner issued notice under Order XII, Rule 2 of the Code of Civil Procedure to the respondents No.1 and 2 and thereby, asked the respondents to admit the execution of documents and their signatures on the stamp of relinquish deed, which was submitted by the review petitioner along with Exh.50 and documents submitted by the Record Keeper, Tahsil Office, Dhule along with Exh.108. The said notice was neither replied by the Respondents No.1 and 3, nor the respondents submitted any say before the lower Court. Therefore, the petitioners filed application below Exh.113 on 5th September, 2007 thereby praying for appropriate orders in pursuance to the notice dated 8.8.2007. The said application was objected by the Respondents. The Counsel for petitioner further submitted that the lower Court was pleased to pass order recording the findings that the respondents have neglected to admit the documents before the Court by examining the necessary witnesses. The Court also ordered that the cost of providing the said documents shall be borne by respondents No.1 and 3. It is ra189.2009 6 further argued that the petitioner has also filed an application below Exh.114 on 3rd October, 2007 and thereby prayed for direction to the respondents No.1 and 3 to produce the original relinquish deed dated 30.12.1983 before the lower Court as the said document is within the possession of respondents No.1 and 3. The said application was objected by the respondents No.1 and 3 by way of filing say. According to the Counsel for the petitioner, the Court below has wrongly rejected the said application of the petitioner. The learned Counsel submitted that undisputedly, the review petitioner proved before the lower Court that the said relinquish deed is within possession of respondents, as respondent No.1 is Karta of the family. Not only this, by showing the original relinquish deed by the respondents to the revenue authorities, the mutation entry was effected by the revenue authorities. The learned Counsel further submitted that the said original relinquish deed is necessary for proving the case of Review Petitioner and the respondents are not placing ra189.2009 7 the same on record. The review petitioner filed certified copy of the said relinquish deed along with Exh.50 as well as the record has been also submitted by the Record Keeper, Tahsil Office, Dhule along with the documents below Exh.108. Under such circumstances, the Review Petitioner was constrained to file an application below Exh. 124 thereby praying to exhibit the certified copies of the relinquish deed submitted by the petitioner along with application below Exh.50 and submitted by the Record Keeper below Exh. 108/4. However, the same has been resisted by respondents No.1 and 3. He further submitted that the review petitioner’s application below Exh.124 in Special Civil Suit No.54/2005 came to be rejected by holding that the case of Review Petitioner does not fall u/s 65 of the Indian Evidence Act. 4. The learned Counsel for the petitioner submitted that the necessary steps were taken by the petitioner under Section 66 of the Indian Evidence Act, 1872 (for short, referred to as the ra189.2009 8 Evidence Act) and notice as contemplated under Order XII, Rule 2 of C.P.C. was given to the respondents. However, the said notice was not replied by the respondents. The learned Counsel further submitted that the case of the petitioner falls under Section 65(a) of the Evidence Act. According to the Counsel for the petitioner, the secondary evidence may be given of the existence, condition or contents of a documents in the cases mentioned in clauses (a) to (g) of Section 65 of the Evidence Act. According to the Counsel for review petitioner, in clause (a) of Section 65, i.e. when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, in that case, secondary evidence relating documents can be given. According to the learned Counsel for petitioner, the petitioner has brought on record sufficient evidence to show that the original relinquish deed appears to be in possession or power of the respondents 1 to 3 and, therefore, the Court below ought to have allowed the prayer of the review petitioner to lead secondary ra189.2009 9 evidence relating to relinquish deed since the certified copy of the said document was allowed to be produced on record by the Court below. The learned Counsel further submitted that the secondary evidence means and includes copies made from or compared with the original. The Counsel for petitioner invited my attention to the provisions of section 63 of the Evidence Act and submitted that the case of the petitioner falls under sub-section (3) of section 63. According to him, the certified copy of the relinquish deed is placed on record by the petitioner before the Court below and therefore, case of the petitioner falls under sub-section (3) of section 63 of the Evidence Act. In the light of the grounds taken in the review petition and submissions herein above, the Counsel for review petitioner prayed that review petition may be allowed. 5. The learned Counsel for the respondents No.1 and 3 was not present when the matter was called out for hearing. He was, therefore, given liberty to file written arguments on record. ra189.2009 10 Accordingly, he has filed his notes of arguments on record. The learned Counsel for respondents, in his notes of arguments submitted, as under: “1] The answering respondent submits that under the present application, the applicant seeks review of the order dated 09-10-2009, passed by this Hon’ble Court in Writ Petition No. 5829 of 2008. The answering respondent submits that by now, it is well settled that the scope of review is very narrow and limited. The scope of review is discussed by the Supreme Court in the Judgment cited at 2007/ 6 SCC 143, para 13 as under :- “ 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 record 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 ......” ra189.2009 11 The respondent submits that the Judgment and order dated 09-10-2009 passed by Hon’ble Court do not suffer from any error; much less on error apparent on the face of record, which would entitle the present applicant to seek review of the order. 2] Writ Petition No. 5829 of 2008, was filed against the order passed by the learned Trial Court, below application Exh. 124, filed by the plaintiff making two prayers as under :- a] The plaintiff may be permitted to adduce secondary evidence of the alleged Relinquishment Deed executed on 30-12-1983. b] The copy of Relinquishment Deed placed on record along with list Exh. 50 may be accepted as secondary evidence and the same may be read and recorded, as evidence. For seeking leave to adduce secondary evidence, plaintiff contended that though the Relinquishment Deed is executed in his favour, it is in possession of defendant No. 1, being Karta of the family. As such the plaintiff sought leave to adduce section ra189.2009 12 evidence under Section 65(a) of the Evidence Act. The plaintiff also contended that the copy placed on record along with list Exh. 50 is a certified copy of the Relinquishment Deed, issued by the Tahsildar. 3] The present respondent original defendant Nos. 1 & 3 opposed the application at Exh. 124. The defendant No. 1 also filed a detailed reply at Exh. 126. The defendants opposed the application, inter-alia on the grounds that - a] The alleged Relinquishment Deed was never executed. b] The defendants are not in possession of the alleged Relinquishment deed. c] The copy of the Relinquishment Deed placed on record is not a certified copy or the secondary evidence of the Relinquishment Deed as defined under Section 63 of the Evidence Act. d] Even the original, would not have been admissible in evidence in view of the provisions of Section 17 r/w Section 49 of the Registration Act. The deed is admittedly unregistered. ra189.2009 13 4] As provided under Section 104 r/w illustration (b) of Evidence Act, the burden was on the applicant/ plaintiff to prove that the original document is in possession or power of the defendants as pleaded by the petitioner. For considering the prayers made by the petitioner in application at Exh. 124, adjudication on the following question was required by the learned Trial Court. a] Whether the plaintiff establishes that the original is in possession or power of the defendants. b] Whether the copy of placed on record is a secondary evidence of the original. c] Whether the unregistered relinquishment deed can be accepted in evidence. 5] The answering respondent submits that the parties were afforded an opportunity to adduce evidence about the matters at issue. After considering the material on record and evidence adduced by the parties, the learned Trial Court rejected the application at Exh. 124 holding that - ra189.2009 14 a] The plaintiff could not prove that the original is in possession or power of defendants. On the contrary, when the Relinquishment Deed is allegedly executed in favour of the plaintiff, it ought to have been in his possession. The Trial Court also took note the fact that the plaintiff, in his plaint, did not mention anything about the alleged Relinquishment. This was an attempt to make out a new case (vide para 9 of the order) b] The copy of Relinquishment Deed placed on record by plaintiff, is not the Secondary evidence. It is a simple photo copy (vide para 6 & 7). c] The original Relinquishment Deed, being itself unregistered, was not admissible in evidence. The order so passed by the learned Trial Court was a reasoned and well considered order. A finding of fact was recorded by the learned Trial Court that ra189.2009 15 the plaintiff could not establish that the original document was in possession or power of defendants. Except the bare words of the plaintiff and a notice issued by the petitioner under Order XII Rule 2. There is no material on record to prove the case of the plaintiff. 6] This order of the learned Trial Court was a subject matter of challenge in Writ Petition No. 5829 of 2009. After considering all the submissions made and documents pointed out by both the parties, this Hon’ble Court is pleased to dismiss the Writ Petition vide order dated 09-10-12009. 7] While dismissing the Writ Petition No. 5829 of 2009, this Hon’ble Court concurred with the reasons recorded and finding arrived by the learned Trial Court. This Hon’ble Court, therefore, refused to interfere with the order passed by the learned Trial Court on the grounds that - a] The disputed questions of facts can not ra189.2009 16 be gone into while exercising writ jurisdiction. b] The order passed by the learned Trial Court was not found to be unreasonable or perverse, which would warrant interference while exercising jurisdiction under Article 227. 8] The respondent submits that this Hon’ble Court, while deciding Writ Petition No. 5829 of 2009, considering all the aspects argued by the petitioner, including the notice issued by the plaintiff to the defendants as per Order XII Rule 2. There is no material at all on record to show that the defendants are in possession or power of the alleged Relinquishment deed. After considering the material on record, this Court concurred with the reasons recorded by the learned trial Court. This Hon’ble Court, therefore, refused to go into the disputed questions of facts. The answering respondent, therefore, submits that, the judgment and order passed by this Hon’ble Court do not suffer from any error which would require review of the order. 9] The Respondent submits that, the grounds for review raised by the present applicant ra189.2009 17 in this application also do not point out any such error. The grounds so raised in the application for review are in fact only, a replica of the grounds raised in the original writ petition. 10] The contention of the applicant that the fact of execution of the alleged Relinquishment deed admitted is also not of any avail to the applicant. The fact of existence of the documents is not germen for considering the case of plaintiff under Section 65(a) of the Evidence Act, the plaintiff is required to establish that the document is in possession or power of the defendants and not mere existence of the document. Even otherwise, the contention of the applicant that the execution of the document is admitted has no merits. In this regard, it may be noted that, the plaint, is silent about any such relinquishment deed. The plaintiff did not utter a word about the relinquishment deed in plaint. On the other hand, the defendants have specifically denied the existence or execution of any such relinquishment deed ra189.2009 18 vide their affidavits at Exh.121 and 123. 11] The answering Respondent, therefore, submits that the present application seeking review of the order dated 09.10.2009 has no merits. 12] The respondents at the outset submit that nothing but an attempt to reopen the hearing of the entire matter. Such practice is strongly deprecated time and again by the Hon’ble Supreme Court so also by the Hon’ble Bombay High Court. The answering Respondent, therefore, submit that such application for review is not maintainable at all and deserves to be rejected in limine.” 6. Heard the learned Counsel for the revision petitioner and learned Counsel for respective respondents, so also perused the pleadings and grounds taken in the review petition, annexures thereto, reply filed by the respondents and I am of the opinion that this review petition deserves to be dismissed. 7. While rejecting the writ petition filed by ra189.2009 19 the review petitioner herein, this Court has observed that whether the relinquish deed is in the custody of the petitioner or respondent No.1 or in the custody of the Tahsildar is a disputed question of fact, which cannot be gone into under writ jurisdiction. By way of filing this review petition, an attempt is made by the review petitioner to suggest that since the application was filed on behalf of respondents No.1 and 3 to the Tahsildar, which was accompanied with the copy of the relinquish deed and upon acting on the said application, mutation entry was taken in the name of the petitioner and his mother. Therefore, according to the Counsel for the petitioner, the original relinquish deed is in the possession of respondents 1 and 3. Since they are not producing the original Relinquish Deed on record, the petitioner herein to prove his case, has filed certified copy of the said relinquish deed on record before the trial Court. As stated earlier, nothing has been brought on record convincingly and undisputedly before the trial Court that the original relinquish deed is ra189.2009 20 in the custody of the respondent Nos.1 and 3. Therefore, while dismissing writ petition this Court observed that whether the relinquish deed is in the custody of the petitioner or respondent No.1 or in the custody of the Tahsildar is a disputed question of fact, which cannot be gone into under writ jurisdiction. 8. The second argument of the learned Counsel for the review petitioner is that the petitioner has placed certified copy of the relinquish deed on record and, therefore, the said evidence or document can be read as secondary evidence as per section 63(3) of the Evidence Act. The petitioner has not convincingly and undisputedly placed on record that the copy of the relinquish deed produced on record is the copy made from or compared with the original relinquish deed because, the very case of the petitioner is that the original relinquish deed is in the custody of the respondents No.1 and 3 and they have not produced it on the record. It is admitted position that the respondents 1 and 3 when filed ra189.2009 21 their application to the Tahsildar, only copy of the relinquish deed was annexed with the said application. Therefore, in my opinion, the reliance placed by the Counsel for petitioner on section 63(3) of the Evidence Act is wholly misplaced and the said argument of the counsel for petitioner stands rejected. 9. Another argument of the Counsel for the petitioner that under Section 65(a) of the Evidence Act, the petitioner should be allowed to lead secondary evidence since the petitioner has demonstrated that the copy of the relinquish deed appears to be in possession or power of respondents No.1 and 3. As stated earlier, it has not come on record that copy of the original relinquish deed is in possession / custody of the respondents No.1 and 3, and therefore, the provisions of section 65(a) of the Evidence Act cannot be made applicable in the present case. Therefore, taking overall view of the matter, no case is made out to review the order ra189.2009 22 dated 9th October, 2009 passed in Writ Petition No.5829 of 2008. 11. Hence, the review application stands rejected. Registry to send back the record & proceedings to the concerned Court within one week from today. [ S.S. SHINDE, J ] ..... Kadam/*