DINESHWAR PRASAD SINGH & ORS vs JAIDEO SULTANIA & ORS.

Heard the parties.

This Miscellaneous Appeal is directed against the order dated 16.01.2007 passed by the Additional District Judge, Fast Track Court III, Dhanbad in

Review Petition No.01 of 2005 whereby and where under the learned court below allowed the review petition.

The brief facts of this case is that the plaintiff filed a suit for a decree of declaration of right, title and interest over 52 decimals of land. The case of

the plaintiff is that the ex-landlord settled 30 decimals of land and executed an unregistered Hukumnama in favour of the original plaintiff. The original

plaintiff thereafter encroached upon and 22 decimals of vacant land. The plaintiff inter alia prayed for declaration of right, title and interest over the

suit Schedule A of the plaint. But neither the Mouza nor the Khata No. of the suit schedule land has been mentioned in the Schedule. The description

of Schedule A land has been given by the plaintiff as under:-

 Schedule-A

 Part and parcel of lands bearing plot nos. 1052, 1054 and 1055 under Municipal Khata of Ward No. V (Old) new Ward No.20, .52 (fifty two)

decimals P.S. Bankmore, District- Dhanbad, butted and bounded as follows:-

North: Rajhans Hotel, Radiant English medium School and house of Harilal Chotalia,

South:Â Â Â S.S.L.N.T. Hospital,

East: Harigopal, Mazumdar Road,

West:Â Â House of M.P. Narang and others.

The case of the defendant is that Wali Ram Taneja was the original recorded tenant. His property was sold to M/s Tridivesh Properties (Pvt.) Ltd

and M/s Gayatri Apartment (Pvt.) Ltd. and thereafter M/s Tridivesh Properties (Pvt.) Ltd and M/s Gayatri Apartment (Pvt.) Ltd. sold the land to the

original defendant.

The learned trial court by its judgment and decree in Title Suit No. 193 of 1995, dated 09.09.2002 dismissed the suit.

The learned lower appellate court being the court of Additional District Judge, Fast Track Court III, Dhanbad in Title Appeal No.54 of 2003

reversed the judgment and allowed the appeal without any cost and set aside the impugned judgment and decree of the trial court.

Mr. Niraj Kishore , the learned counsel for the appellants submits that in view of Order 47 Rule 5 of the Code of Civil Procedure, the review

application should have been adjudicated by the same court which passed the judgment in the lower appellate court and relying upon the judgment of

Hon’ble Supreme Court in the case of Haridas Das Vs. Smt. Usha Rani Banik & Others reported in 2006 (3) JLJR 14(SC) wherein the

Hon’ble Court in para-14 has referred to the judgment of the said Hon’ble Court in Meera Bhanja Vs. Smt. Nirmala Kumari Choudhary [AIR

1995 SC 455) wherein it has been held as under:-

 14. “It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in

every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive

limits to be exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which,

after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when

the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any

analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merit. That would be in the province of a court of

appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of error committed

by the Subordinate Court.†(Emphasis Supplied)  and in para-16 wherein the Hon’ble Supreme Court has referred to the decisions of the said

Hon’ble Court in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma reported in AIR 1979 SC 1047 which reads as under:-

 16. “It is true as observed by this Court in Shivdeo Singh vs. State of Punjab (AIR 1963 SC 1908) there is nothing in Article 226 of the

Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage

of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of power of review. The power of

review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the

knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some

mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the

ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with

appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Courtâ€​. (Emphasis Supplied) and

also in para-18 of the said decision, wherein the Hon’ble Supreme Court in the case of Parsion Devi vs. Sumiri Devi reported in 1997 (8) SCC 715

relying upon the judgments in the cases of Aribam’s (Supra) and Smt. Meera Bhanja(supra) observed as under:-

 18. “Under Order XLVII, Rule 1, CPC a judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the

record. An error which is not self-evidence and has to be detected by a 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 XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII,

Rule 1, CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited

purpose and cannot be allowed to be an appeal in disguiseâ€. (Emphasis Supplied) submitted that the court below has exceeded its jurisdiction of

review while passing the impugned order in exercise of the power of review.

Learned counsel for the appellants further submitted that there was no new fact relied upon by the learned court below while reviewing the

judgment of the lower appellate court in Title Appeal No.54 of 2003 and since subsequent to filing the review petition, the Second Appeal No.182 of

2005 was filed by the respondents in this case. The learned court below ought not have entertained the review application.

Mr. A. K. Sahani, the learned counsel for the respondents on the other hand defended the impugned order and submitted that the respondent Nos.6

of the Title Appeal No.54 of 2003 who is the son of the original plaintiff and the brother of the two appellants of that appeal in para-13 (vi and vii) at

page-5 of his show-cause filed in response to the Review Petition No. 1 of 2005 has exposed the fraud practised by the appellants of the said appeal

upon the court by pleading as under:-

(vi) Four brothers of this opposite party including Om Prakash Singh have been residing in Rajhans Hotel building but they had/have no concern with

or right in aforesaid land i.e. suit land. But now this opposite party has come to learn that his brothers especially Om Prakash Singh had his greedy

eyes on that land.

(vii) This opposite party has come to learn recently, after thorough enquiry, that Om Prakash Singh with an evil design to grab the suit land forged few

ante- dated documents including one Hukumnama to show that said land was taken in settlement by Raj Narayan Singh from Raja of Jharia i.e. ex-

landlord in the year 1940.

It is further submitted by the learned counsel for the respondents that during the pendency of the review petition, the petition was filed by the

respondents of this appeal-who are the review petitioners in the learned court below, to call for the Revenue Records pertaining to C.S. Khata No.157

which was rejected by the learned court below and the review petitioners/respondents filed W.P.(C) No.80 of 2006 in this Court and in the counter-

affidavit was filed by the present appellant Om Prakash Singh in the said W.P.(C) No.80 of 2006, he has categorically stated that the entry made in

C.S. Khata/Khatiyan No.157 had no concern with the suit plot. It is further submitted by the respondents that after filing of the suit, the plaintiff

amended his plaint and pleaded that though the suit was initially for declaration, right, title and interest but by way of amendment they have pleaded

that on 11.08.2000 and 07.09.2000, the defendants have entered into the said land and kept one dumper and took photographs of the suit land and they

also modified their original relief to a decree for confirmation of possession or in alternative for recovery of the possession if the court finds that the

plaintiff is out of the possession of the suit land during the pendency of the suit.

It is further submitted by the learned counsel for the respondents that the appellants have mutated their name in respect of adjacent property

showing the possession of original vendor of the defendants and the original recorded tenant Wali Ram Taneja in the southern side of the suit land

which prima facie falsifies the case of the plaintiff that they were in possession of the suit land.

Learned counsel for the respondents next submitted that apart from the unregistered Hukumnama and rent receipts purportedly issued by the ex-

landlord, there is no other document of the plaintiffs in respect of the suit land and those documents were also not prepared in accordance with law in

the sense that the Hukumnama document bears the signature of one Beni Madhav Tewary, purportedly a power of attorney holder of exlandlord but

the power of attorney was never brought on record nor during the trial, the said Beni Madhav Tewary has been examined. Further no one from the

family of the ex-landlord has been examined and the said Saada Hukumnama and rent receipts are in Bengali language which is not the language of

the court as the language of the court is Hindi. It is also submitted that the description of the suit land in the absence of revenue khata no. is vague. On

the other hand the defendants have documents of title by way of sale deed supported by entry of mutation in their name in the office of Circle Officer

as well as the Municipality and they have the supporting land revenue receipts and tax receipts to show their possession over the suit property.

Further, the plaintiffs do not have document to show that the ex-landlord after vesting of the land in the state has filed any return or signed the

settlement of land with the plaintiff nor the required Form- K, L and M of Bihar Land Reforms Act has been filed by the plaintiff and neither it is the

case of the plaintiffs that they have perfected their title by way of adverse possession in respect of 22 decimals of land admittedly encroached by the

plaintiff nor they have disclosed who is the real owner of the said 22 decimals of land and the date from which their possession became hostile animus

with the real owner. It is an apparent error on the record that the learned court below in the judgment and decree dated 04.04.2005 passed in Title

Appeal No.54 of 2003 has observed that the appellant of that suit has perfected his title by way of adverse possession and particularly when the

plaintiffs themselves are not sure whether they were in possession of the suit land as they have prayed for the alternative remedy of recovery

possession. It was further submitted that the learned court below certainly erred by observing that the plaintiff has perfected his title by way of

adverse possession over the suit land and certainly such an observation is an error apparent on the face of the record and as admitted by the

respondent No.6 in the show-cause filed in the review petition, the plaintiff has committed fraud upon the court basing upon which the judgment and

decree in Title Appeal No.54 of 2003 has been passed by the learned appellate court below.

Learned counsel for the respondents relied upon the judgment of Hon’ble Supreme Court in the case of Nazir Ali Mian (Dead) through LRS.

and Others Vs. Dokal Mian and Others reported in (2010) 7 SCC 384 where in the facts and circumstances of that case, where the learned court

below observed that the two hukumnamas involved in that case were unregistered documents hence no title could have been conferred upon the

alleged settlee by virtue of those hukumnamas. The Hon’ble Supreme Court did not interfere in the said findings of the learned court below in the

facts and circumstances of that case. Learned counsel for the respondents further relied upon the judgment passed in the case of Board of Control

For Cricket In India and Another Versus Netaji Cricket Club and Others reported in (2005) 4 SCC 741 wherein in paragraphs-88, 89 and 90 has held

as under:-

“We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad

in law. Section 114 of the Code empowers a court to review its order if the conditions precedent 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 Section 114 of the Code in

terms whereof it is empowered to make such order as it thinks fitâ€​.

“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 reasonâ€​.

“Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the

order. An application for review would also be maintainable if there exists sufficient reason therefor. 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 are 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."" (Emphasis Supplied)

On this point, the learned counsel for the respondents also relied upon the judgment of Hon’ble Supreme Court of India in the case of United

India Insurance Co. Ltd. Versus Rajendra Singh and Others reported in (2000) 3 SCC 581 wherein the Hon’ble Court in paragraphs-3, 13, 14 and

16 has held as under:-

“Fraud and justice never dwell together†(fraus et jus nunquam cohabitant) is a pristine maxim which has never lost its temper over all these

centuries. Lord Denning observed in a language without equivocation that “no judgment of a court, no order of a Minister can be allowed to stand if

it has been obtained by fraud, for, fraud unravels everythingâ€​ (Lazarus Estates Ltd. v. Beasely)

“‘Fraud avoids all judicial acts, ecclesiastical or temporal’ observed Chief Justice Edward Coke of England about three centuries ago. It

is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non-est in the eyes of law. Such a

judgment/decree- by the first court or by the highest court-has to be treated as a nullity by every court, whether superior or inferior. It can be

challenged in any court even in collateral proceedings.â€​

“Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of

Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court

is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.â€​

“Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of

high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that

the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.â€​ (Emphasis Supplied)

Learned counsel for the respondents also relied upon the judgment of Hon’ble Supreme Court in the case of Meghmala and Others Versus G.

Narasimha Reddy and Others reported in (2010) 8 SCC 383 wherein the Hon’ble Supreme Court has held in paragraphs- 33 and 36 as under:-

“Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an

act of deliberate deception with a design to secure something, which is otherwise not due. The expression ""fraud"" involves two elements, deceit and

injury to the person deceived. It is a cheating intended to get an advantage.â€​

“From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken

away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted.

Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by

fraud as the order so obtained is non est.â€​ (Emphasis Supplied)

Learned counsel for the respondents next relied upon the judgment of Division Bench of this High Court in the case of Atish Kumar Singh Versus

The State of Jharkhand reported in 2017 (3) JLJR 745 the Division Bench held in Para-11 that “It is a settled principle of law that an Act, which is

prima facie, bad and fraudulent in nature, cannot get validation by the order of the Judicial Commissioner. Thus, prima facie, the order of the Judicial

Commissioner, which may be based on misrepresentation and fraudulent act, cannot be relied upon. It is well settled principle that fraud vitiates

everything.â€​

So far as the maintainability of review application during the pendency of the Second Appeal is concerned, learned counsel for the respondents

relied upon the judgment passed by a Full Bench of the Allahabad High Court in the case of Behari Lal and Another Vs. M.M. Gobardhan Lal and

Others reported in AIR 1948 Allahabad 353 wherein the question formulated by the Full Bench to consider was ‘whether the filing of an appeal

subsequent to the filing of an application for review makes the hearing of the review application incompetent?’ and held in paragraph-41 and

under:-

“The powers of an appellate Court are to be found enumerated in S. 107 read with O. 41, Civil P.C. The grounds which would justify a Court

to entertain an application for review have, on the other hand, been laid down in S. 114 read with O. 47, R. 1, Civil P.C. Order 47, R. 1 is a

reproduction of S. 623 of the Code of 1882 which is substantially the same as S. 376 of the Code of 1859. It will be noticed that it is open under these

sections and orders to a person considering himself aggrieved by a decree or order specified in Clause (a), (b) or (c) of Section 114 to apply for a

review on one of the following grounds : (a) discovery of new or important matter or evidence which, notwithstanding the fact that the party aggrieved

had exercised due diligence, was not within the knowledge of the party or could not be produced by him at the time when the decree was passed or

the order made, (b) some mistake or error apparent on the face of the record, or (c) for any other sufficient reason. When the Court grants a review it

is open to it to either re-hear the whole case or confine the hearing only to the particular point on which the review was allowed. It will be noticed that

one of the conditions laid down for an application for review is that it must be filed before an appeal has been preferred. On the question as to what is

meant by the words ""an appeal has been preferred,"" I may refer to a case 41 C.W.N. 129 in which a decree was passed by the High Court of

Calcutta in its ordinary original civil jurisdiction on 4th March 1986. The memorandum of review was filed on 20th May 1936. Five days later, i.e., on

25th May 1936 a memorandum of appeal was filed against the decree of 4th March 1936. The question was whether the review application was filed

at a time when no appeal had been preferred. The view of the Court was that the review application had been filed before the appeal was preferred.

Pankridge J. held that the review had been filed before the appeal was preferred and that the Court could not be said to have been deprived of the

jurisdiction to entertain the application for review on the ground that when the application came on to be dealt with an appeal was pending. The crucial

date, therefore, is the filing of the application for review. If on that date the appellate Court has no appeal pending before it, the review application is

under the Code, as it stands, competent. The power to entertain the review remains in existence till such period as the appeal is not heard and

disposed of. After the appeal has been heard and a decree passed by the appellate Court, it is not open to the Court before whom the application for

review was presented to proceed with its hearing. But where an application for review comes to be heard and decided before the appeal is heard and

finally disposed of, the position is that it is incompetent for the appellate Court to hear the appeal for the new decree is, in that case, held to supersede

the decree appealed from. That this is the law is clear from a long course of decisions to which attention has been drawn pointedly by my brother,

Harish Chandra. I may say that my interpretation of those cases is that they lay down that where an application for review of judgment is granted, the

order for review supersedes the original decree and the decree under appeal ceases to exist and the appeal cannot be heard. This proposition is

deducible from the following cases: 6 Cal. 22, 28 ALL. 240, 34 ALL. 282, 44 Cal. 1011, 31 Bom. L.R.137, 34 C.W.N. 1002 and 35 C.W.N. 251. The

position, then, is that, as laid down by Chatterjee and Nowbould JJ. In 44 Cal.1011. “the Court has power, and in fact is bound to proceed with the

application for review notwithstanding the fact that an appeal has been subsequently filed in the case. But that power exists so long as the appeal is

not heard, because once the appeal is heard, the decree on appeal is the final decree in the case, and the application for review of judgment of the

Court of first instance can no longer be proceeded with. Whether it can be so proceeded with (after the appeal is heard) in cases coming under O. 47,

R. 1(2) it is unnecessary for us to consider. On the other hand, if the application for review is successful, the appeal cannot proceed.†(Emphasis

Supplied)

Hence, it is submitted on behalf of the respondents that the learned court below has rightly allowed the review petition and this appeal being

without any merit be dismissed.

So far as the contention of the appellants regarding the review application should have been heard by the court which passed the judgment is

concerned, by referring to Order 47 Rule 5 of the Code of Civil Procedure is concerned, Rule 5 is in strict sense would apply to the case of a court

constituting of more than one judges which is not the case in hand. Of course, there is general principle for very good reason that a review must be

heard by the same judge or by the same court but there are situations in which it is not possible where the same judicial officer is not available and in

this situation it is well settled law that any other court of concurrent jurisdiction can hear the case as has been reiterated by the Hon’ble Karnatka

High Court in the case of Savithramma v. H. Gurappa Reddy and others reported in (AIR- 1996 Karnataka 99).

Learned counsel for the respondents submits that in the impugned order, it has been mentioned that review application was admitted by the same

judge who passed the impugned judgment but consequent upon the transfer of the earlier judge who passed the impugned judgment and decree in Title

Appeal No.54 of 2003, the same was heard by another Additional District Judge having concurrent jurisdiction. So, in this backdrop I do not find any

illegality on this score alone to set aside the impugned order.

So far as the contention of the appellants regarding the filing of the Second Appeal by the respondents against the judgment and decree passed by

the learned appellate court in Title Appeal No.54 of 2003 is concerned, it will be profitable to quote Order 47 Rule 1 and Section 114 of the Code of

Civil Procedure which reads as under:-

ORDER XLVII

REVIEW

Application for review of judgment.- (1) Any person considering himself aggrieved,-

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

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the

exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on

account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree

passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other

party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the

Appellate Court the case on which he applies for the review.

Review.- Subject as aforesaid, any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed by this

Code, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by thisÂ

Code, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a 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.

 From bare perusal of the aforesaid provisions of law it is crystal clear that law mandates that once the second appeal is filed after that a review

petition cannot be entertained. But here the review petition was filed prior to the filing the Second Appeal by the respondents of this appeal. So, in this

backdrop I am persuaded by the reasoning of the majority judgment of the Full Bench of the Allahabad High Court in the case of Behari Lal V. M.M.

Gobardhan Lal (Supra) and I am of the opinion that the subsequent filing of the Second Appeal will not be a bar to carry on with the review petition till

the Second Appeal is heard.

So far as the contention of the appellants regarding the absence of discovery of new and important evidence, which was not within the knowledge

of the respondents of this appeal having brought on record, the review petition ought not to have been entertained by the learned court below is

concerned, I have no hesitation in holding that in the case of Board of Control For Cricket In India and Another Versus Netaji Cricket Club and

Others (Supra), where the Hon’ble Supreme Court has categorically mentioned the scope and circumstances under which the power of review

can be exercised and certainly discovery of new facts is not sine qua non for exercising the power of review under Order 47 of Rule 1 read with

Section 114 of the Code of Civil Procedure.

Moreover, the show-cause filed by the respondent Nos.6 and the counter-affidavit filed by the appellants in W.P.(C) No.80 of 2006 can be termed

as discovery of a new and important evidence. Further the observation that the appellants of that appeal have perfected their title by way of adverse

possession by the learned court below in the judgment and decree dated 04.04.2005 passed in Title Appeal No.54 of 2003, even though it is not the

case of the plaintiffs that they have perfected their title by way of adverse possession in respect of 22 decimals of land admittedly encroached by the

plaintiffs and in the absence of essential pleading for declaration of title by adverse possession like who is the real owner of the said 22 decimals of

land and the date from which the possession of the plaintiffs became hostile animus with the real owner, can certainly be termed as error apparent on

the face of the record.

Considering the aforesaid facts and circumstances of the case as well as the law discussed above, I have no hesitation in holding that the learned

court below was well within its power to review the judgment and decree passed in Title Appeal No.54 of 2003 by the Additional District Judge, Fast

Track Court III, Dhanbad. Hence, the impugned judgment does not warrant any interference of this Court.

In view of the aforesaid facts and circumstances of the case and the principle of law as discussed above, this appeal being without any merit is

dismissed but in the circumstances without any cost.

Let the lower court records be sent back to the court below with a copy of this judgment forthwith.Â