Kanhaiya DasDas, Disciple, Ram Udaaar Sankadik Ashram vs Thakur Ram Janki Virajman Mandir and Others

Mahendra Dayal, J.—1. The review-applicant by means of this review petition has sought review of the judgment and order dated 28.10.2014 passed by this Court in Second Appeal No. 236 of 2014.

I have heard Shri Ratnesh Chandra, learned counsel for the review-applicant (respondent in second appeal) and Shri Amol Kumar, learned counsel for the opposite parties (appellants in the second appeal) and have perused the record.

It has been contended by the learned counsel for the review-applicant that against the order passed by Additional District Judge, Court No. 1, Faizabad in Civil Appeal No. 34/2007 on 27.02.2014, the opposite parties had filed second appeal before this Court. The opposite parties had filed a suit for permanent injunction with regard to the property bearing Municipal No. 10/2/25, situated in Mohalla Ramkot, Ayodhya, District Faizabad. The review-applicant was the defendant No. 2 in the said suit and he had filed a counter claim along with his written statement. The learned trial court by the judgment and order dated 26.05.2007 dismissed the suit filed by the opposite parties and decreed the counter claim filed by the review-applicant. The deed executed in favour of the opposite party No. 2 - Ram Swaroop Das, dated 09.02.1999 was cancelled and the review-applicant Kanhaiya Das was declared as Mahant and Sarbarahkar of Thakur Ramjanki Mandir.

Feeling aggrieved by the aforesaid judgment and decree passed by Civil Judge (Senior Division), Faizabad, the opposite parties preferred Civil Appeal No. 141/1999 before the District Judge, Faizabad. The said appeal was dismissed by the judgment and order dated 27.02.2014 on the ground that the appeal was not maintainable in view of the fact that there were two decrees passed in the original suits, one for the dismissal of the suit and the other for allowing the counter claim. Since the opposite parties had preferred only one appeal against both the decrees, therefore, the appeal was not maintainable. It also need mention here that while dismissing the appeal on the aforesaid ground, the learned first appellate court also discussed the merit of the case.

The opposite parties feeling aggrieved by the dismissal of their first appeal, preferred second appeal before this Court. The second appeal was allowed by this Court on 28.10.2014, whereby the judgment and order passed in Civil Appeal No. 31/2007 was set aside and the first appellate court was directed to register the civil appeal on its original number and after payment of requisite court fees by the opposite parties on the appeal filed against the decree of counter claim, proceed to hear the same and decide according to law at the earliest. It is made clear that while allowing the second appeal, this Court examined only that much aspect of the matter by which the first appeal was found not maintainable. The merit of the case was not touched. This Court, while allowing the second appeal, came to the conclusion that there was only one suit in which counter claim was filed and the suit as well as counter claim, both were decided by a common judgment and decree. There was, therefore, no need to file separate appeal against the decree passed in counter claim. The aforesaid conclusion was drawn with the observation that the principle of res-judicata as contained in Section 11 C.P.C. does not apply to the facts of this case because there was only one suit in which counter claim was filed. It was not a case where two different suits were consolidated and decided by a common judgment and decree.

Shri Ratnesh Chandra, learned counsel for the review-applicant has submitted that the provision of filing counter claim by the defendant in a suit is contained in Order 8 Rule 6-A of the Code of Civil Procedure. In this provision, it is provided that a defendant in a suit, may in addition to his right of pleading a set-off under Rule 6, set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired. It is provided in Sub-rule (2) that such counter claim shall have the same effect as a cross suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. It has also been submitted that under Section 2(2) CPC, conclusive determination of rights of parties upon adjudication in certain circumstances can have the status of a decree. If the counter claim has been finally decided, the order attains status of a decree. Therefore, it could be assailed before appropriate forum by way of appeal.

In support of the aforesaid argument, Shri Ratnesh Chandra, learned counsel for the review-applicant has relied upon a Supreme Court''s decision report in , 2015 (4) Supreme Court 298 - Rajni Rani & Anr. v. Khairati Lal & Others, in which Hon''ble the Supreme Court has held that the order dismissing the counter claim is a final adjudication and attains a status of a decree. It could be assailed only by way of filing an appeal and not under Article 226 of the Constitution of India.

In the aforesaid background, it has been contended on behalf of the review-applicant that the opposite parties ought to have filed two separate appeals because there were two separate decrees, one passed in original suit dismissing the same and the other passed in counter claim by which the counter claim was decreed. This Court while allowing the appeal and remitting the matter back to the first appellate Court, committed mistake of law in construing the provision of counter claim and treating the decree passed in original suit as one decree while there were two separate decrees. In these circumstances, the judgment and order passed in second appeal be reviewed and the second appeal be dismissed with the finding that the order passed by the first appellate Court is perfectly, legal and justified.

Shri Amol Kumar, learned counsel for the opposite parties has submitted that the scope of review as provided under Order XLVII, Rule 1 CPC is very limited. While exercising power of review, this Court can only correct the error apparent on the face of the record and review the order if either of the parties comes with a case that there was a 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. The Court may also review its own order for any other sufficient reason. It has also been submitted by the learned counsel for the opposite parties that when the second appeal was heard and disposed of by this Court, some other counsel had appeared on behalf of the review-applicant and the present counsel is a new counsel, who did not represent the review-applicant at the time of hearing of the second appeal. For this reason also, the review application is not maintainable.

The law with regard to review of a judgment or order has been clarified by Hon''ble the Supreme Court in the case of Hari Das v. Smt. Usha Rani Banik & Ors. reported in , AIR 2006 SC Page 1634. Hon''ble the Supreme Court has clarified that a judgment may be open to review, if there is a mistake or an error apparent on the face of the record. An error which is not self evident 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. It is not permissible for an erroneous decision to be reheard and corrected. A review petition has a limited purpose and cannot be allowed to be an appeal in disguise.

In another case reported in , (2009) 14 SCC Page 663 -Inderchand Jain v. Motilal, the Hon''ble Supreme Court has held that while hearing a review petition, the court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. The power of review cannot be exercised on the ground that the decision was erroneous on merits.

In the case of Smt. Krishna Pathak v. Vinod Shankar Tiwari reported in , 2005 (3) AWC Page 2601, this Court has held that it is not permissible for a counsel to argue a review petition when the final petition had not been argued by him in view of the law laid down by Hon''ble the Supreme Court in the case of Tamil Nadu Electricity Board & Anr. v. N. Raju Reddiar & Anr., reported in , AIR 1997 SC Page 1005.

Having heard learned counsel for the parties and having gone through the judgment and order under review and the law on the subject, I find that the learned counsel for the review applicant has failed to point out any error apparent on the face of the record. So far as the illegality in the judgment and order is concerned, the Hon''ble Supreme Court has clearly held that rehearing of the matter is not permissible while exercising power of review. The Court can only correct such mistake which are apparent on the face of the record. It is also evident from a perusal of the record that the counsel, who argued the review on behalf of the review-applicant was not the counsel in the second appeal.

In view of above, the review petition lacks merits and is liable to be dismissed.

In the result, the review petition is dismissed.