CIVIL REVIEW No. 42 OF 2008 (Against the Judgment and Order dated 3rd October, 2007 passed in L.P.A. No. 309 of 1998 arising out of C.W.J.C. no. 1136 of 1996) KISHUN RAM MARWARI @ KRISHNA KUMAR JALAN -------(Appellant) --Versus-- THE STATE OF BIHAR & ANR. ----------------(Respondents) -------- For the Petitioner : Mr. R.K.P Singh For the Respondent : Mr. R.C. Thakur. ----- P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M.PRASAD Barin Ghosh & C.M. Prasad, JJ. A look at the order under review would amply demonstrate that the Court found that the learned lawyer has not read the registered instrument upon which the appellant was seeking to rely. However, the Court did not conclude the matter thus. The Court in no uncertain terms recorded that no attempt was made by the appellant before the authority concerned, or before the writ Court or even in the appeal to establish that the vendor of the appellant had title to pass the same on to the appellant and also that there is nothing on record which would suggest that after the title was acquired 2 by the appellant upon passing over of the same by his vendor, the appellant had taken appropriate steps in relation thereto i.e. to have himself mutated and thereupon to pay rent or revenue in relation thereto. In the present review application, it has been stated that all those papers were with the learned lawyer, who was engaged by the appellant and it was the fault on the part of the learned lawyer in not placing those papers in the records of the authorities concerned, the writ Court and the appellate Court and accordingly, upon recalling of the order passed by this Court in the appeal, the matter must be re-heard. In law, the principal distinction between a suit and a writ petition is that the plaint filed in the suit contains only pleas put forward, whereas in the writ petition, the pleas are required also to be supported by evidence. In a suit, the plaintiff gets an opportunity to establish the pleas taken by him in the plaint by tendering evidence. In a writ petition or in a proceeding of summary nature, as that of before the authorities under the Act, the person pleading must produce evidence in support thereof simultaneously. The lawyer concerned, who was aware of all the evidence while putting 3 forward the pleas may have made a mess, but the plea, as was ultimately taken, was that of the appellant before the authorities concerned, the writ Court, as well as before the appellate Court. That being the situation, if we permit review on the ground as taken in the instant application, that would tantamount to permitting the appellant to add on pleas not taken right from the stage the matter was dealt with by the authorities concerned. The order under review made it explicit that there is nothing on record which would suggest that after purchase of the land in question, steps as are required to be taken by the purchaser of land, i.e. mutation, payment of revenue etc., were taken. Now, the appellant wants to add pleas to that effect to be taken on records and thereupon seeks to substantiate the same by evidence to be brought on record. If that is permitted, the same will never permit any case to reach to its finality, which is the ultimately object of having Courts. The learned counsel for the appellant cited a Judgment of the Hon’ble Supreme Court rendered in the case of Rafiq Vrs. Munshilal, reported in A.I.R. 1981 S.C. 1400, 4 where the application for recalling an order disposing of an appeal ex parte was dismissed on the ground that though the said application was made on 29th October, 1980 but was filed on 12th October, 1980 and there was no satisfactory explanation for the slackness on the part of the learned Advocate, who was requested to file the application. In that background, the Hon’ble Supreme Court observed that the party having done everything in his power to effectively participate in the proceedings can be rest assured that he has neither to go to the Court to inquire as to what is happening in the Court with regard to the appeal, nor is he to act as a watch dog of the advocate that the latter appears in the matter when it is listed. The Hon’ble Supreme Court in that case in no uncertain terms held that it is no part of his job. Accordingly, since the application for recall was dismissed only for delay in presentation thereof and the said delay was that of the advocate concerned, the Hon’ble Supreme Court allowed the application upon imposing costs of Rs. 200/- upon the advocate, who absented himself and thereupon without any just reason delayed presentation of the application. This Judgment has no relevance so far as the present review 5 application is concerned, for it cannot be said to be the fault of the advocate and, even if, not his sole fault. An advocate could advise his client in relation to evidence to be tendered on the basis of the pleas taken. It is well settled for the last hundred years in this Country that no evidence can be looked at upon a plea not taken. The application for review, accordingly, fails and the same is dismissed. Patna High Court, 28th August, 2008, S.B.P./NAFR. (Barin Ghosh, J.) (C.M. Prasad, J.)