FA/53/2002 of CHETAN SWAMI TRUST TARAK ASHRAM Vs SWAMI PRANVANAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

(Court’s order whether the case is or not approved for reporting)

Description of the case

Review Application No. 1142 of 2007

F.A. 53 of 2002

Sri Chetan Swami Trust Tarak Ashram Ujjaili

Swami Pranvanand.

Approved for reporting.

Date of Decision:- 28.03.2008.

Initial of Judge:

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Reserved

HIGH COURT OF UTTARANKHAND AT NAINITALREVIEW APPLICATION NO. 1142 OF 2007IN

FIRST APPEAL NO. 53/2002

Shri Chetan Swami Trust,

Tarak Ashram, Ujjaili,

Uttarkashi

Through Swami Chetananand Trust

….. Plaintiff-Appellant

Swami Pranvanand Chetan Swami Triyagcharanand, Rudrawas, Ujjaili, Uttarkashi

…Defendant-Respondent 28.3.2008

Hon’ble Rajesh Tandon, J.

Heard Shri Udyog Shukla, counsel for the appellant and Shri S.K. Jain, counsel for the respondent.

2. By the present review application, the applicant has prayed for reviewing the order dated 7.8.2007 on the grounds as under:-

“I. The appellant/plaintiff in grounds numbers 9 to 19 raised specific contentions that the wills dated 7.10.60 and 20.12.1974, on basis of which the respondent/defendant claimed ownership of the property in dispute and Id. Trial Court decided issues 1,4, and 6 against the appellant/plaintiff, were revoked and superseded by will dated 22.6.1987 which was produced by the respondent/defendant before the Id. Trial Court as document number 122 Ga. The Hon’ble Judge in the impugned order 7.8.2007 completely ignored the said grounds and without giving any findings wrongly dismissed the appeal. Omissions to decide the legal contentions constitute the error apparent on face of record justifying review of the order. II. The Id. Trial Court while dealing issue No. 3 in para 17 of the judgment specifically recorded findings that Br. Sraang Saraswati was owner of the property in dispute and was not licensee. Therefore, the Id. Trial Court was not justified in deciding issue no. 4 against the appellant/plaintiff and in favour of the respondent/defendant on basis of wills dated 7.10.1960 and 20.12.1974 which were revoked by Br. Sarang Saraswati by will 22.06.1987 produced by the respondent/defendant as document number 122 Ga. The appellant/plaintiff’s counsel pointed out the illegality in the Id. Trail Court’s order 26.7.2002.

However, the Hon’ble Judge did not consider the said legal contentions and no finding was given on the grounds in the impugned judgment. Therefore, omission to consider the legal contention constitutes an error apparent on face of record and is liable to be reviewed.

III. The appellant/plaintiff is Gurubhai of late Br. Sarang Saraswati and after his death the appellant/plaintiff inherited the property as Gurubhai and filed the suit for declaration. The Id. Trial Court by holding that the appellant/plaintiff decided the issue No. 2 in favour of the appellant/plaintiff. Therefore, the findings of the Id. Trial Court on issues No. 1,4 and 6 are contrary to findings on issue no. 2. IV. The appellant/plaintiff’s counsel at the time of arguments raised and pressed the contentions that wills dated 7.10.1960 and 20.12.1974 stood cancelled and revoked by the later will dated 22.6.1987 which is on the Id. Trial Court record as document number 122 Ga. The appellant/plaintiff’s counsel in supprt of his contentions relied on the following judgments:

a) AIR 1975 Gauhati 50

b) 2005 (2) C.C.C. 712

c) 2006 (2) CIVIL COURT CASES 386

The Hon’ble Judge in the impugned judgment neither referred nor gave any findings regarding revocation of the said wills dated 7.10.1960 and 20.12.1974 by subsequent will dated 22.6.1987.

V. The Hon’ble Judge in para 16 of the impugned judgment committed the factual error by making observations that the Ld. Trial Court has recorded the findings that the appellant/plaintiff is the disciple of Br. Sarang Saraswti and Sw. Sarvanand vide deciding issue no. 2 in favour of the appellant/plaintiff specifically recorded the findings in para 13 of the impugned judgment that the appellant/plaintiff was Gurubhai of Sw. Sarvanand and Br. Sarang Saraswati. This factual error is apparent on the face of record and is liable to be corrected by way of review.

VI. The Hon’ble Judge in para 17 of the impugned judgment committed another factual error by holding that the Id. Trial Court has observed that the will in question is not disputed. AS matter of fact the Id. Trial Court had made the said observation regarding will dated 22.6.1987 placed on record by the respondent/defendant as document No. 122 Ga. This factual error also requires to be corrected by way of review.”

3. Briefly stated, the plaintiff has filed suit for declaration of ownership of the hermitage (kutia) situate at Khasra no. 1772, Sarang Sewa Ashram, Ujjeli, Uttarkashi. The trial Court has dismissed the suit of the plaintiff by observing as under:-

“fookfnr dqfV;k oknh ds xq:HkkbZ Lokeh lkjax ljLorh ds LofeRo esa Fkh ftUgksaus vius thoudky

esa gh bl dqfV;k dh ,d iathd`r olh;r izfroknh ds vuar Le`fr VªLV dks dj nh Fkh lkjax ljLorh dh e`R;q lu~ ƒ‹ŠŠ dks gks xbZ Fkh vr% mudh e`R;q ds rqjUr ckn olh;r ds vk/kkj ij fookfnr lEifRr dk gLrkarj.k izfroknh dks gks x;k bl izdkj lkjax ljLorh dh e`R;q ds ckn fookfnr lEifRr ds LokfeRo dh ?kks"k.kk oknh ds gd esa ugha dh tk ldrhA mDr okn fcUnqvksa ds fuLrkj.k ls ;g ckr iw.Zkr;k Li"V gS fd Lo;a oknh ds vfHkKku esa fookfnr dqfV;k dh olh;r izfroknh ds vuar Le`fr VªLV dks dh tk pqdh gS ftldk Lo;a oknh xokg gS vr% mls ekaxk x;k vuqrks"k ns; ugha gS A”

4. Aggrieved by the judgment and decree passed by the trial court, the plaintiff has field the present first appeal which was also dismissed on 7.8.2007 against which the present review application has been filed. Operative portion of the judgment dated 7.8.2007 is quoted below:-

“22. On the perusal of aforesaid document, it is

clear that Sarang Saraswati was the owner of land khasra no. 1772 and he had executed the Will with regard to the disputed property in favour of the Anant Smriti. The plaintiff has also admitted that the defendant is the owner of the disputed property on the basis of Will. Thus, it is evident that Sarang Saraswati was the owner of the disputed property and not the licencee and, as such, on the basis of his Will the defendant is

the owner of the disputed property. So far as the fact as to whether the Will was executed independently or forcibly is concerned, it is evident from the record that in the Will by which Sarang Saraswati had given the ownership of the property to Anant Smriti Trust, the plaintiff has put his signature on the Will as witness. The plaintiff has also not challenged the Will in the life span of his Gurubhai. Hence, it cannot be deemed that the Will was executed forcibly by putting his signature as witness and his submission that the Will was not read over to him has no credence.

23. I have also considered the fact with regard to capability of making the trust and am fully convinced with the findings of the trail court that so far as transfer of property during the trial proceedings is concerned, there is no legal bar but the future of the trust depends on the decision of the suit. The trial court has recorded the finding that in case it is observed that the Chetnanad is not the owner of the property in dispute, the trust formed by him will automatically come to an end and is case it is held that he is the owner of the disputed property, them the transfer done by him will be valid. I find no illegality in the aforesaid finding recorded by the court below.

24. In view of the aforesaid, I do not find any illegality in the order passed by the trial court.

The first appeal lacks merit and is liable to be dismissed.

25. Consequently, first appeal is dismissed being devoid of merits with costs.”

5. The provisions of review as contemplated under Order 47 Rule 1 read with Section 114 has got very limited scope of interference, the language of Order 47 Rule 1 provides that review could be entertained not for correcting an erroneous judgment, not for correcting non-considered judgment as alleged by the plaintiff, it cannot be utilized to provide an opportunity of denovo hearing in case which has been adjudicated on merits. It is because of this reason the legislature has confined the scope of Order 47 Rule 1 for review on following rounds:-

“a) That by decree or order from which an appeal is allowed, but from which no appeal has been preferred.

b) That by decree or order from which no appeal is allowed by this code, or

c) That by decision on reference from

court of small Causes, may apply for review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

6. So far as, the merit of the review petition is concerned, the review petition can be filed only for consideration of important matters or evidence which, by mistake or error on the face of the record could not be considered when the

order was passed. review petition cannot be filed for re-hearing of the entire matter by changing the counsel as well.

7. The Hon’ble Apex Court in the case M/S Northern India Cateres (India) Ltd. v. Lt. Governor of Delhi, (1978) 4 SCC 36 has observed as under:

“It is well-settled that party is not entitled to seek review of judgment delivered by this Court merely for the purpose of rehearing and fresh decision of the case. The normal principle is that judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan. For instance, if the attention of the Court is not drawn to material statutory provision during the original hearing, the Court will review its judgment: G.L. Gupta v. D.N. Mehta15.The Court may also reopen its judgment if manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi. Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made byParliament or the rules made under Article 145. In civil proceeding, an application for review is entertained only on ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in criminal proceedings on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except “where glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”: Sow Chandra Kante v. Sheikh Habib (1975) 3 SCR 935.”.

8. In the case Parison Devi v. Sumitri Devi, (1997) 8 SCC 715 Hon’ble Supreme Court has held that while exercising power under Order XL VII Rule 1 of the Code of Civil Procedure it is not permissible for erroneous decision to be re-heard and corrected and the power of review cannot be exercised to be an appeal in disguise. Hon’ble Supreme has observed as under:

It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. (SCR at p. 186) this Court opined:

“What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an ‘error apparent on the face of the record’). The fact that on the earlier occasion the Court held on an identical state of facts that substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an ‘error apparent on the face of the record’, for there is distinction which is real, though it might not always be capable of exposition, between mere erroneous decision and decision which could be characterized as vitiated by ‘error apparent’. review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.”

Under Order 47 Rule 1 CPC judgment may be open to review inter alia if there is mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it s not permissible

for an erroneous decision to be “reheard and corrected”. review petition, it must be remembered has limited purpose and cannot be allowed to be “an appeal in disguise”.

9. In the case Union of India v. Paul Manicram AIR 2003 SC 4622 the preposition of law discussed as above has been consistently upheld by the Apex Court.

“As noted supra, for the first time in the review application it was disclosed that the representation was made to the President of India and no representation was made to the State of Tamil Nadu or the Union of India who were arrayed in the writ petition as parties. This appears to be deliberate attempt to create confusion and reap an undeserved benefit by adopting such dubious device. The High Court also transgressed its jurisdiction in entertaining the review petition with an entirely new substratum of issues. Considering the limited scope for review, the High Court ought not to have taken into account factual aspects which were not disclosed or were concealed in the writ petition. While dealing with habeas corpus application undue importance is not to be attached to technicalities, but at the same time where the court is satisfied that an attempt has been made to deflect the course of justice by letting loosered herrings the court has to take serious note of unclean approach. Whenever representation is made to the President and the Governor instead of the indicated authorities, it is but natural that the representation should indicate as to why the representation was made to the President or the Governor and not the indicated authorities. It should also be clearly indicated as to whom the representation has been made specifically, and not in the manner done in the case at hand. The President as well as the governor, no doubt are constitutional Heads of the respective Governments but the day-to-day administration at respective levels is carried on by the Heads of the Departments/Ministers concerned and the designated officers who alone are ultimately responsible and accountable for the action taken or to be taken in given case. If really the citizen concerned genuinely and honestly felt or was interested in getting an expeditious consideration or disposal of his grievance, he would and should honestly approach the real authorities concerned and would not adopt any dubious devices with the sole aim of deliberately creating situation for delay in consideration and cry for relief on his own manipulated ground, by directing his representation to an authority which is not directly immediately concerned with such consideration.”

10. Hon’ble Supreme Court in the case Parsion Devi vs. Sumitri Devi (1997) 8 SCC 715 has observed that rehearing the matter for detecting an error in the earlier decision and then correcting the same do not fall within the ambit of review jurisdiction. The Apex Court has observed as under:

“It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of AIR 1964 SC 1372 this Court opined:

“What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an ‘error apparent on the face of the record’). The fact that on the earlier occasion the Court held on an identical state of facts that substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an ‘error apparent on the face of the record’, for there is distinction which is real, though it might not always be capable of exposition, between mere erroneous decision and decision which could be characterized as vitiated by ‘error apparent’. review is by no means an appeal in disguise whereby an erroneous decision is

reheard and corrected, but lies only for patent error.”

11. In view of the above, the review petition, is liable to be rejected on the grounds that the power of review cannot be exercised as an alternative mode of appeal or the permit the parties to provide another opportunity of hearing on merit, more so when the grounds taken by the review petitioner in the review application have already been discussed and considered on merit, this court lacks jurisdiction to interfere with the impugned judgment and order and cannot act as Court of appeal in the review application.

12. In view of the above, the review petition is dismissed. No order as to costs.

28.3.2008 avneet

(Rajesh Tandon, J.)