S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 1/21 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Rameshwar Lal & Anr. vs. Smt.Pana Devi & Anr. S.B.CIVIL REVIEW PETITION NO.1/2009 IN S.B.CIVIL SECOND APPEAL NO.182/94 DATE OF ORDER : 21st January 2009 P R E S E N T HON'BLE DR.JUSTICE VINEET KOTHARI REPORTABLE Mr.M.C.Bhoot, for the petitioner. BY THE COURT: 1. This review petition has been filed by the appellant-defendant- tenant aggrieved by the judgment and eviction decree by dismissing the second appeal under Section 100 CPC against the concurrent eviction decree of two courts below on the ground of sub-letting and parting with possession by the judgment dated 27/11/2008. S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 2/21 2. Mr. M.C.Bhoot, learned counsel for the review-petitioner made lengthy submissions for over three hours spread over in two days on the said review petition and the main contentions for seeking review of the judgment were only two fold:- (1) that in view of the list of partners of the firm M/s Dal Chand Visheshwar Das (`DCVD' for short) which has been produced along with review petition for the first time and which is a document not available before any of the courts upto the date of decision of second appeal, shows that there were common partners between the said firm DCVD and new firm M/s Chand Ratan Shyam Sunder (`CRSS' for short) and, therefore, the judgment giving eviction decree deserves to be recalled and reviewed and (2) that the Court had erred in awarding mesne profit to the plaintiff-landlord @ Rs.5000/- p.m. commencing from November, 2008 even though there was no case made out by the plaintiff for the same nor any arguments were addressed to the Court on this aspect of the matter and, therefore, judgment deserves to be reviewed. 3. Mr.Bhoot for the review-petitioner cited before the Court several judgments of the Supreme Court mainly to the effect of explaining the scope of review under Section 114 CPC read with S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 3/21 Order 47 Rule 1 CPC, reference to which shall be made hereinafter. 4. Mr.Bhoot urged that though the application filed under order 41 Rule 2 CPC seeking amendment in the memo of appeal was treated as allowed in para no.11 of the judgment but no additional substantial question of law was framed by the court and this was an apparent error in the judgment. The substantial question of law quoted in the judgment was framed at the time of admission of the appeal on 20th July, 1994 itself. However, since the counsels were permitted to raise their arguments about sufficiency of the pleadings on both the sides and the amendment in memo of appeal and additional grounds in the application under Order 41 Rule 2 pertained to this aspect only, it was stated in para 11 of the judgment that said application under Order 41 Rule 2 should be treated as allowed. However, since the said argument centered round the substantial question of law already framed about sub-letting and parting with the possession furnishing ground of eviction under Section 13 (1) (e) of the Rajasthan Rent Control Act, 1950 there was no need to frame any additional substantial question of law and the question already framed has been decided by the judgment under review dt: 27/11/2008. S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 4/21 5. As far as the question of considering the document produced with the present review petition namely certificate of Registrar of Firms of M/s DCVD is concerned, admittedly, said document is now produced for the first time and the review petitioner has himself expressed regret about the same at page 11 of his review petition. The said document firstly cannot be taken into consideration at the stage of review as it was neither before the trial court nor proved in accordance with law nor before the appellate courts including this Court and more so because the said document does not affect the findings of courts below and this Court in any manner much less it renders the judgment as suffering from any apparent error so as to call for review. The following is quoted from para 9 of the judgment: “Despite having in its possession the partnership deed and regular books of accounts and income tax records, nothing of this sort was produced by the defendants before the trial court to establish that there was common partners between the two Firms and there was no parting with the possession by the defendant nos. 1 and 2 in favour of defendant no.3. On the other hand, plaintiffs have established that defendant no.3 Firm was a different and independent Firm in which the S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 5/21 defendant no.1 Rameshwar Lal had no concern. The admission of defendant no.3 himself that he was carrying on his own business as Gold Smith in Sarrafa Bazar at Bikaner, whereas, Chand Ratan, his younger brother, was carrying on said coal business in the suit premises under the name and style of M/s CRSS and he had no concern with M/s CRSS clearly shows that there was parting with the possession by the defendant nos. 1 and 2 in favour of defendant no.3 and obviously the same was without the permission of plaintiffs because that was the main ground raised by the plaintiffs seeking eviction of defendant no.3 from the suit premises. The alleged documents namely rent receipts and letter head of M/s CRSS were not proved before the trial court, on the contrary, the said rent receipts Ex.A/28 to A/33 on which signatures were denied by P.W.2 - Bheru Baksh were found to be forged documents by the courts below.” 6. Thus, the defendant Rameshwar Lal had himself admitted before the trial court that the said old firm M/s DCVD had been dissolved and he had no concern with the new firm M/s CRSS and he was carrying on his own business of goldsmith in Sarafa Bazar, S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 6/21 Bikaner which was a different place. Thus, there is no point in now producing before this Court in review petition a document of registration showing the list of partners of old M/s DCVD. The said document does not show any relationship of original tenant Rameshwar Lal with the new firm M/s CRSS in any manner, therefore, same cannot affect the findings of parting with the possession by him in favour of M/s CRSS. Therefore, such unsubstantiated and unproved document cannot furnish any valid ground of review and they cannot be taken into consideration at this stage. 7. Therefore, all the three courts having given definite conclusion about parting with the possession by the original tenant Rameshwar Lal, who had taken suit premises for the firm M/s DCVD had parted with the possession of the suit premises in favour of M/s CRSS with which he had no concern and, therefore, ground of eviction was made out. Thus, the document now produced with review petition does not render findings and eviction decree wrong and invalid in any manner. The said document is not only contrary to the oral evidence of the defendant himself as quoted above but same also does not establish S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 7/21 any relationship of Rameshwar Lal with the other firm M/s CRSS, therefore, the findings of parting with the possession cannot be assailed. These findings even otherwise could not have been assailed in second appeal as such much less in review petition, the scope of which is narrow and limited. No reargument of the case is permitted in review jurisdiction. 8. The other contention raised seeking a review was about the mesne profits of Rs.5000/- fixed by the Court w.e.f. November, 2008, that there has been breach of principles of natural justice and the said mesne profit has been awarded as a bounty to the landlord, without any pleading or argument, is also of no avail to the review petitioner. Learned counsel for the review petitioner agreed that with the passing of the decree of eviction passed against the tenant, the relationship of landlord and tenant comes to an end and thereafter for use and occupation, landlord is entitled to mesne profits and the trial court in the present case while giving eviction decree on 6/8/83 had fixed the mesne profit of Rs.300/- per month. In the present case tenancy commenced way back on 13/7/1966 @ Rs.210/- per month and suit was filed in 1974 and was decreed on 6/8/1983 i.e. Tenancy is 43 S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 8/21 years old from now, suit is 35 years old from now and eviction decree is 26 years old from now. Even if rate of inflation or devaluation of money value from 1983 till now is broadly taken into consideration, the mesne profit of Rs.300/- fixed by the trial court would become Rs.5000/- per month. This was the rationale and reasonableness of fixing mesne profit @ Rs.5000/- from November 2008 by this Court. Mesne profit are admittedly compensation and damages for use and occupation of suit premises after the eviction decree and after coming to end of the relationship of landlord and tenant. There is no provision in the Rent Control Act, 1950 providing any guidelines for fixing mesne profit, therefore, it has to essentially depend upon the wisdom and discretion of the Courts. 9. Recently, the Hon'ble Supreme Court in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. - (2005) 1 SCC 705 while dealing with the imposition of payment of mesne profit even during the pendency of second appeal by High Courts invoking power under Order 41 Rule 5 CPC as a condition for grant of stay to defendant tenants in second appeal has held as under:- S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 9/21 “Robust common sense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record – all these provide useful inputs as relevant facts for exercise of discretion while passing an order and formulating the terms to put the parties on. The tenant having having suffered an order for eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate Court. While ordering stay the appellate Court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. There is every justification for the appellate Court to put the tenant-appellant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. Landlord-tenant litigation constitutes a large chunk of litigation pending in the Courts and Tribunals. The litigation goes on for unreasonable length of time S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 10/21 and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can thereby afford to perpetuate the life of litigation and continue in occupation of the premises. If the plea raised by the learned senior counsel for the respondent was to be accepted, the tenant, in spite of having lost at the end, does not loose anything and rather stands to gain as he has enjoyed the use and occupation of the premises, earned as well a lot from the premises if they are non-residential in nature and all that he is held liable to pay is damages for use and occupation at the same rate at which he would have paid even otherwise by way of rent and a little amount of costs which is generally insignificant. In the case at hand, it has to be borne in mind that the tenant has been paying Rs.371.90p. rent of the premises since 1944. The value of real estate and rent rates have skyrocketed since that day. The premises are situated in the prime commercial locality in the heart of Delhi, the capital city. It was pointed out to the High Court that adjoining premises belonging to the same landlord admeasuring 2000 sq. ft. have been recently let out on rent at the rate of Rs.3,50,000/- per month. The Rent Control Tribunal was right in putting the tenant on term of payment of Rs.15,000/- S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 11/21 per month as charges for use and occupation during the pendency of appeal.” 10. Thus, when mesne profits can be fixed even while granting stay against eviction during the pendency of appeal under Order 41 Rule 5 in the discretion of the Court, it can be so granted, more so while deciding the appeal itself. In view of this, fixation of mesne profits at Rs.5000/- per month only from November 2009 cannot be said to be bounty for landlord or a condemnation of tenant at all. 11. The contention of learned counsel for the review-petitioner that while enhancing the mesne profit from Rs.300/- to Rs.5000/- per month from November 2008 the defendant appellant, review- petitioner herein, has been condemned unheard is also without any force. First of all there is no condemnation at all. As already explained above, the money value of Rs.300/- over such long period would stand enhanced to Rs.5000/-. Even if it be not so, fixation of mesne profit is always in the discretion of the Court which has to be fairly and reasonably exercised. In view of the long period of tenancy of 50 years and miniscule amount being paid for the property which S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 12/21 may be of very high value now and may carry rental value for more than Rs.5000/-, fixing of mesne profit @ Rs.5000/- p.m was rather considered to be on conservative side rather than giving any bounty to the plaintiff or punishment to the defendant-tenant. Enhancement of mesne profit was only moulding the relief which was already claimed by the plaintiff in the suit and granted by the trial court also. The defendant-tenant had been enjoying the suit property for all these years for almost negligible amount of rent and if the mesne profit was enhanced to Rs.5000/- per month from November 2008 when the second appeal was dismissed, it can hardly be said to be condemnation or punishment to defendant-tenant. Therefore, seeking review of a judgment on this ground and the so called breach of principles of natural justice, hardly impresses this Court. The Hon'ble Supreme Court in Board of Mining Examination v. Ramjee reported in AIR 1977 SC 965 held that natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. Mere raising of plea of breach of natural justice does not call for a review of the judgment. As already explained the enhancement of mesne profit was mere moulding the relief already claimed and granted by the courts below and no separate pleading, claim or argument was needed for S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 13/21 that. It was in the discretion of the Court which has been fairly and reasonably exercised in the matter and does not call for any review. 12. During the course of lengthy arguments while quoting well settled principles of law about review and approach of the Courts from various judgments, learned counsel also read out the oath administered to a Judge of High Court from the Constitution of India and also said that such judgments as the one under review may create a bad image of the institution in the public. 13. Upon questioned about the propriety and need for making such submissions for which learned counsel assumed to himself such liberty perhaps on account of his rather long standing at the bar for over 40 years, he tried to link this to his argument of so called breach of natural justice and defendant being condemned unheard about enhancement of mesne profit to Rs.5000/- commencing from November 2008, when the second appeal was dismissed. The tone and tenor of such argument could only be taken as an effort on the part of the counsel to heap insult on the Judge and to browbeat the judge in securing issuance of notice on the review petition for which S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 14/21 learned counsel insisted also, cannot and should not be tolerated by any Judge. Unless honest and fearless Judges were to man the Courts, the very edifice of judicial system would crumble. Fortunately, in our country this is not the position. Such effort on the part of counsels, having due respect to their standing at the bar, also deserves to be deprecated and dealt with strongly. Despite having been indicated that the contentions raised for seeking review do not make out a case for review as there is no apparent error in the judgment, the insistence of the counsel for review and for this reading out oath from Constitution and talking of so called bad public image by the judgment is hereby deprecated. 14. Now the brief overview of the judgments cited at the bar at the time of arguments for which it may be observed at the outset that this Court does not stand at variance with the principles of review pronounced in these judgments at all but there was hardly any substance in the aforesaid two contentions seeking review of the judgment and, therefore, these judgments could not naturally be invoked and applied by the Court to review the judgment. It may be stated here that mere dissatisfaction or failure to achieve the desired S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 15/21 result in the case or a mere effort to re-argue the case does not furnish any ground for review and unless a mistake going to the root of the case, which is apparent on the face of the judgment is pointed out and established, review of a judgment is not permissible. (i) S.Bagirathi Ammal vs. Palani Roman Catholic Mission – AIR 2008 SC 719: “A reading of the above provision makes it clear that Review is permissible (a) from the discovery of new and important matter or evidence which after the exercise of due diligence could not be produced by the party at the time when the decree was passed; (b) on acount of some mistake; (c ) where error is apparent on the face of the record or is a palpable wrong; (d) any other sufficient reason..........In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or inquiry, only one conclusion can be drawn in favour of the appellant, in such circumstances, the review will lie.” S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 16/21 (ii) State of West Bengal and others vs. Kamal Sengupta and another – (2008) 8 SCC 612: “Since the Tribunal's power to review its order/decision is akin to that of the Civil Court, statutorily enumerated and judicially recognized limitations on Civil Court's power of review the judgment/decision would also apply to the Tribunal's power under Section 22(3)(f) of the Act. In other words, a Tribunal established under the Act is entitled to review its order/decision only if either of the grounds enumerated in Order 47 Rule 1 is available. This would necessarily mean that a Tribunal can review its order/decision on the discovery of new or important matter or evidence which the applicant could not produce at the time of initial decision despite exercise of due diligence, or the same was not within his knowledge or if it is shown that the order sought to be reviewed suffers from some mistake or error apparent on the face of the record or there exists some other reason,which, in the opinion of the Tribunal, is sufficient for reviewing the earlier order/decision.” (iii) Food Corporation of India & Ors. vs. Seil Ld. & Ors. - (2008) 3 SCC 440: S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 17/21 “We do not, thus, find any substance in the contention of Mr. Sharan that while exercising its review jurisdiction, no interest on the principal sum could have been directed to be granted by the High Court. A writ court exercises its power of Review under Article 226 of the Constitution of India itself. While exercising the said jurisdiction, it not only acts as a court of law but also as a court of equity. A clear error or omission on the part of the court to consider a justifiable claim on its part would be subject to review; amongst others on the principle of actus curiae neminem gravabit (An act of the courts shall prejudice none). We appreciate the manner in which the learned Judge accepted his mistake and granted relief to the respondents.” (iv) Board of Control for Cricket in India and anr. vs. Netaji Cricket Club and others – (2005) 4 SCC 741: “Section 114 of the Code empowers a court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in S.B.Civil Review Petition No.1/2009 IN CSA NO.182/94-Rameshwar Lal & Anr. vs.Smt.Pana Devi & Anr. Order dt:.21/01/09 18/21 Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".” (v) Surjit Singh & Ors. vs. Union of India & Ors.- (1997) 10 SCC 592:- “The Tribunal has wrongly stated that if they commit mistake, it is for the Supreme Court to correct the same. That view of the Tribunal is not conducive to the proper functioning of judicial service. When a patent error is brought to the notice of the Tribunal, the S.B.Civil Review