1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. MISC. CIVIL APPLICATION NO. 601 OF 2008 IN SECOND APPEAL NO. 463 OF 1991 Sadashiv Mahadeorao Pokle (dead) through LRs Ramabai Sadashiv Pokle & Ors. .... APPLICANTS. VERSUS Mahesh Baban Pokle & Ors. .... RESPONDENTS. Shri M.G. Bhangde, Senior Advocate with Shri S.S. Joshi, Advocate for the review applicants/ appellants. Shri C.S. Samudra, Advocate for respondents No. 1 & 2 (original plaintiffs). ..... CORAM : B.P. DHARMADHIKARI, J. AUGUST 14, 2008. ORDER : 1. By this Misc. Civil Application, original defendant in Special Civil Suit and appellant in Second Appeal No.463 of 1991 is seeking review of the judgment delivered on 28.2.2008 by me, dismissing his 2 Second Appeal. 2. The present Respondents No. 1 & 2 had filed Special Civil Suit No. 221 of 1983 through their father and natural guardian against review applicants for recovery of possession and damages on the basis of title. The Suit came to be dismissed and review applicants then filed Regular Civil Appeal No. 530 of 1985. 10th Additional District Judge, Nagpur, dismissed that appeal with costs on 19.9.1991. On 22.11.1991, Second Appeal No. 463 of 1991 came to be admitted on two questions as substantial questions of law, the first being about the explanation of suspicious circumstances shrouding the Will and the second about protection of C.P. & Berar Premises Rent Control Order,1949. During the pendency of Second Appeal, the review applicants/ appellants filed Civil Application No. 2069 of 2003 and sought to urge additional substantial questions of law in relation to nature of property. However, on 17.7.2006, they have filed another application raising more questions as substantial questions of law and with the result, they did not press Civil Application No. 2069 of 2003. The parties were then heard in Second Appeal on 1st February 2008 3 and thereafter on 6th February 2008 on five questions mentioned below : “1. Whether Will dated 29.4.1976 was voluntarily executed by deceased Nathu and whether all suspicious circumstances shrouding the Will have been dispelled by adducing cogent reasons ? 2. Whether in view of plea by respondents – plaintiffs that the appellants were alternatively in possession as licensee, the appellants are entitled to benefit of amended provisions of C.P. & Berar Letting of Premises and Rent Control Order, 1949 ? 3. Whether the finding that though suit property is ancestral property, original defendant No.1 – Sadashiv had no share in it is legal ? 4. Whether finding of lower appellate Court that suit property is self acquired property of Nathu is perverse? 5. Whether suit for possession as filed was maintainable without terminating the licence of defendants – appellants ?” 3. After the judgment was delivered in Second Appeal, Shri Joshi, learned counsel representing appellants/ review applicants sought protection of possession for a further period of eight weeks to 4 enable the appellants to challenge said judgment. Though said request was opposed by Shri Samudra, Advocate representing the respondents, I protected the possession for a period of six weeks from the date of delivery of judgment i.e. from 28.2.2008. Thereafter, the present Misc. Civil Application came to be filed on 26.3.2008 for review, basically raising three main contentions in the matter. First one is protection of Rent Control Legislation to review applicants in view of plea of Respondents No. 1 & 2 that review applicants were tenants of the deceased Nathu or were licensees. The second aspect is in relation to Will with contention that the only consideration by lower appellate Court about active role played by Mukund and it is contended that when said observation was found to be incorrect, this Court ought to have remanded the matter back to lower appellate Court for fresh consideration of evidence. The third aspect is about nature of property and it is sought to be urged that burden to show that property was self acquired property of deceased Nathu was squarely upon Respondents No. 1 & 2 (original plaintiffs). 4. I have heard Shri M.G. Bhangde, Senior Advocate with Shri 5 S.S. Joshi, Advocate for the review applicants/ appellants and Shri C.S. Samudra, Advocate for respondents No. 1 & 2 (original plaintiffs). 5. Shri Bhangde, Senior Advocate has contended that substantial questions of law at Sr. Nos. 2 & 5 considered by this Court have not been properly appreciated and he has invited attention to pleadings of the parties to point out that Respondents No. 1 & 2 in their plaint have expressly pleaded that the review applicants were licensees paying Rs.15 per month as licence fees to original owner Nathu Pancham during his life time; and that during the life time of Nathu, original defendants occupied portion of suit house as licensees and were in permissive possession. In this background, it is stated that the finding recorded by this Court that in order to claim protection of Rent Control Legislation, it was necessary for the original defendants/ present review applicants to plead in their written statement that they were licensees or were paying rent to Nathu is unwarranted. It is argued that no such arguments were advanced before this Court by Respondents No. 1 & 2 or original plaintiffs and such point was never urged. 6 6. The learned Senior Advocate has contended that in view of the pleadings and evidence of plaintiffs which is consistent with their plea reproduced above, the protection of Rent Control Legislation ought to have been extended to these applicants. In support of this argument, reliance is placed upon the judgments of the Hon'ble Apex Court in the case of Firm Sriniwas Ram Kumar vs. Mahabir Prasad, reported at AIR 1951 SC 177, Uma Kanoria vs. Pradip Kumar Daga, reported at 2002(2) Indian Civil Cases 588 Calcutta and Ganesh Shet vs. Dr. C.S.G.K. Setty, reported at (1998) 5 SCC 381. 7. About the Will, the contention of learned Senior Advocate is that the arguments before this Court stopped only after pointing out that the finding of lower appellate Court that active role in procuring the Will was played by Mukund was incorrect. It is contended that when arguments were not advanced by any of the parties, this Court could not have considered whether circumstances shrouding the execution of Will dated 29.4.1976 were suspicious circumstances or not. It is contended that such consideration is without any notice to 7 parties and without obtaining any assistance of any of the advocates representing parties and hence the unsustainable. The reliance has been placed upon the judgment of the Hon'ble Apex Court in the case of Bhagwan Sharma vs. Bani Ghosh, reported at 1993 Supp. (3) SCC 497. 8. Lastly by pointing out observations in the judgment in para 21, it is sought to be urged that burden to show that property was exclusive property of Nathu was upon present Respondents No. 1 & 2 as they were original plaintiffs and as the same has not been discharged, this Court ought to have dismissed the suit. The attention has been invited to pleading in this respect in para 12 of the plaint as also reply thereto in para 12 of written statement. The support is sought to be taken from the judgment of the Hon'ble Apex Court in the case of Ramchandra Sakharam Mahajan vs. Damodar Trimbak Tanksale, reported at (2007) 6 SCC 737, to contend that admission of a party does not confer any title and in this respect attention is invited to the judgment of the Hon'ble Apex Court in the case of Canbank Financial Services Ltd. vs. Custodian, reported at (2004) 8 SCC 355. 8 It is contended that no plea in written statement about nature of Nathu's property or effect of his Will on property was necessary. 9. While concluding the arguments, the learned Senior Advocate has relied upon the judgment of the Hon'ble Apex Court in the case of Green View Tea & Industries vs. Collector, reported at (2004) 4 SCC 122, to point out scope of review and Indian Charge Chrome Ltd. vs. Union of India, reported at (2005) 4 SCC 67, to contend that if an error apparent necessitating review is demonstrated, it is the duty of the Court to recall its order. 10. As against this, Shri Samudra, Advocate has contended that all issues were argued before this Court and after evaluating material available on record, this Court has correctly found that the questions of law as framed did not warrant any interference in concurrent judgments and decrees delivered by the Courts below. He points out judgment of the Hon'ble Apex Court in the case of Satyanarayan vs. Mallikarjun, reported at AIR 1960 SC 137, to contend that there is no error apparent in present matter and this Court should not interfere in 9 review jurisdiction at all. It is his contention that when elaborate reasoning is required to be given after detailed hearing to find out or point out whether error apparent is there on record or not, no review can be undertaken. He further invites attention to the judgment of the Hon'ble Apex Court in the case of Northern India Caterers vs. Lt. Governor, Delhi, reported at AIR 1980 SC 674, to state that merely because alternative situations were not placed before this Court, that cannot be the ground for review. He also tries to distinguish the judgment of the Hon'ble Apex Court in the case of Firm Srinivas Ram Kumar vs. Mahabir Prasad (supra) to show that said judgment has no application in the present facts. 11. Insofar as the contention about protection of Rent Control Legislation and claim therefor by present review applicants is concerned, the same has been considered in the judgment in Second Appeal in para 15 onwards and in para 20, I have found that it was never the case of review applicants that they or Sadashiv were licensees or tenants of Nathu or the respondents. In said para, I have also found that no such plea even in alternative was raised. The case 10 law cited by parties has been appropriately evaluated and in para 16, it has been found that the trial Court was required to find out which Will out of two Wills at Exhs. 31 and 33 was legal and valid. The pleadings to which the learned Senior Advocate has invited attention are also considered in para 15 by me and it has been noticed that the suit filed by the respondents before Small Causes Court was required to be withdrawn as review applicants did not accept themselves to be tenants. When the suit was filed in competent civil court on the basis of title for their eviction, their status as licensee was also not accepted by the respondents. They chose to claim ownership and contended that they were residing as owners since 1953. Having failed in two Courts in their effort to prove ownership, conveniently ignoring the denial of their status as licensee or tenant , in Second Appeal plea was sought to be raised that they ought to have been treated as licensees. It is to be noted that law helps those who come with clean hands and does not approbate or reprobate. I, therefore, do not find any substance in arguments of learned Senior Advocate insofar as interference in said finding in review jurisdiction is concerned. 11 12. In Firm Srinivas Ram Kumar vs. Mahabir Prasad (supra) on which the learned Senior Advocate has placed reliance, the defendant did accept the payment of earnest money to him but stated that it was a loan amount. In view of this admission of receipt of payment by the defendant, the Hon'ble Apex Court found that the decision of trial Court ordering of refund of that amount by the defendant to the plaintiff was justified and the High Court took rigid and technical view of the matter. Here, after driving plaintiff from pillar to post, the review applicants are ignoring their own stand and want to fall back upon the case of the plaintiff which they once chose to deny. Similarly, the judgment of the Hon'ble Calcutta High Court in Uma Kanorai vs. Pradip Kumar Daga (supra), the defendant had not taken plea that plaintiff was money lender and the High Court found that it was for the defendant to take plea that the plaintiff was money lender unless such fact was admitted by the plaintiff. The judgment of the Hon'ble Apex Court in the case of Ganesh Shet vs. Dr. C.S.G.K. Setty, (supra) holds in para 16 that normally it is permissible to grant relief on the basis of what emerges from evidence even if not pleaded, provided there is no prejudice to opposite party. In present case, there 12 was express plea and its denial and as such the above finding of the Hon'ble Apex Court has got no bearing in the present matter. I find that none of these rulings are, therefore, relevant in present case. 13. The second ground of attack is that this Court has committed an error in holding that there were no suspicious circumstances shrouding the Will executed by Nathu in favour of the respondents. It is urged that only argument advanced before this Court was to the effect that finding of lower appellate Court that active role in execution of Will was played by Mukund was unsustainable. It is to be noted that question No.1 as formulated in relation to Will dated 29.4.1976 was the question framed and was required to be considered & answered by this Court. This Court, therefore, rightly proceeded further by observing that the said finding of lower appellate Court though erroneous was not sufficient to vitiate its application of mind. The reasons therefor are given in remaining portion of paras 12, 13 and 14 of the judgment. It was for the review applicants to address the question completely and they cannot be permitted to take advantage of their own wrong. In the 13 judgment of the Hon'ble Apex Court in the case of Bhagwan Sharma vs. Bani Ghosh, (supra), the facts are entirely different. The High Court there did not agree with the finding of lower appellate Court and restored decree of trial Court without considering entire evidence. That is not the position in the present matter. The parties can not stipulate that Court of law should consider only what they have argued and should not evaluate other material looked into by the lower appellate Court for taking a particular view. 14. The last contention of the learned Senior Advocate about nature of property is equally misconceived. The learned trial Court was required to find out who was owner on the basis of two Wills executed by deceased Nathu in favour of rival claimants before it. It is, therefore, apparent that by relying upon the alleged Will of Nathu in their favour and by claiming ownership and title on that basis, the review applicants accepted Nathu to be the owner. Having failed in their effort to prove that Will, they have now resorted to roving efforts by falling back upon plea of plaintiff and also by contending that Nathu was not exclusive owner. The necessary pleadings in this 14 respect are already considered by me in the judgment in Second Appeal from para 21 onwards. The Court has further found that statement of fact appearing in Exh. 33 i.e. Will of 1965 in favour of review applicants was admitted by Madan to be correct and said Madan in para 8 of his cross examination has also accepted that Nathu was owner of suit house and that Nathu invited his father Sadashiv to live therein. Madan is review applicant No. 3 in present matter and he was appellant No. 3 in Second Appeal. Similarly, witness No. 3 Nathu Tingle examined by the review applicants (original defendants) accepted in his examination-in-chief that Nathu used to live in his own house with Sadashiv. This Court, therefore, has not relied upon only admission to uphold the finding that Nathu was owner. 15. In view of this discussion, the judgment of the Hon'ble Apex Court in the case of Canbank Financial Services Ltd. vs. Custodian, (supra) (particularly para 85), is of no assistance to the review applicants. The stand that no plea about joint nature of ownership of Nathu or about alleged effect of Will was essential in written statement is, therefore, misconceived. Similarly, reliance upon the 15 judgment of the Hon'ble Apex Court in the case of Ramchandra Sakharam Mahajan vs. Damodar Trimbak Tanksale, reported at (2007) 6 SCC 737 (particularly para 13) for the purposes of contending that weakness of defence or their failure to establish title set up by them cannot enable the plaintiff to a decree, is not at all warranted in present facts. After considering the material on record, the finding delivered has been maintained in Second Appeal. 16. The attention of Court was invited in Second Appeal to entire material available on record either in their favour or against them by both sides. The questions formulated have been decided in the light of said material. Review applicants have only attempted to raise technical objections in this review application and I do not find any merit in it. The various judgments to which both sides have made reference to point out when jurisdiction of review should be exercised or should not be exercised need not, therefore, be appreciated in this matter though during hearing I was taken through then same. During the arguments in present Misc. Civil Application, it has not been pointed out that any particular evidence or document on record has 16 been lost sight of by this Court. As such, I do not find any case made out for exercise of review jurisdiction. Various contentions raised by the appellants while arguing Second Appeal have been appreciated in the background of questions formulated and have been answered after considering the material available on record. 17. There is no merit in this application or review & the same is, therefore, dismissed. Review applicants to pay costs quantified at Rs.3000/- to the respondents/plaintiffs. JUDGE Shri Joshi, learned counsel for the applicants/ appellants prays for continuation of interim order protecting the possession for a period of six weeks. Shri Samudra, learned counsel for respondents No. 1 & 2 strongly opposes the request. He states that while delivering final judgment, the interim order was continued and thereafter during the pendency of review application because of interim undertaking given 17 by the present respondent, again the possession was protected. However, considering the fact that the matter is pending since long, I am inclined to continue the protection of possession for a period of six weeks from today but subject to present applicants/ original appellants depositing the amount of Rs.3,000/- as awarded in the present order with the Registry of this Court, within a period of one week from today. If the amount is so deposited, the interim protection of possession shall continue for a period of six weeks from today and shall cease to operate automatically thereafter. JUDGE *GS.