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Judgment
Gopal Krishan Vyas, J.—This review petition has been filed by the petitioners u/s 114, read with Order 47 Rule 1, C.P.C. praying that the review petition may be accepted and after reviewing and re-considering the judgment dated 28.7.2009 passed in S.B. Civil Revision Petition No. 158 of 2009, the revision petition may be allowed in terms of the prayer made in the revision petition.
I have heard Mr. M.C. Bhoot, learned Counsel for the petitioners on the instant petition for review/reconsideration.
In this review petition, it is contended by learned Counsel for the petitioners that in the revision petition challenge was made by the petitioners to quash Order dated 28.2.2009 passed by the Addl. District Judge No. 1, Bikaner passed upon the application filed u/s 92, C.P.C. by the respondent-plaintiffs and it is specifically stated that Section 92 and 93 do not apply for the public trusts and application u/s 92 was not maintainable. As per learned Counsel for the petitioner, error has been committed while deciding the revision petition which is required to be reviewed and reconsidered.
Contention of learned Counsel for the petitioners is that while referring to the arguments, this Court has wrongly inferred that on behalf of the petitioners it is argued that no suit can be filed against the Trust as per Section 44 of the Act of 1959. As per learned Counsel for the petitioners, the argument was that suit can be filed against the unregistered trust but it can only be filed by a person who obtains a direction from the Assistant Commissioner, Devasthan Department of the Government u/s 38 of the Act of 1959 and provisions of Sections 38, 39 and 40 of the Act were referred and further provisions of Section 40 were compared with the provisions of Section 92 of the Code of Civil Procedure. It is also argued that vital aspect of the matter and relevant provisions have not been taken into consideration while deciding the revision petition.
It is also submitted that argument with regard to Sections 42 and 44 of the Act for the public trusts though submitted and referred to have not been considered while deciding the matter and though these provisions have been taken note of but while passing the order under review impact has not been considered.
Further, it is argued that this Court has erred in framing the question of law that petitioners are objecting that suit is barred u/s 44 and 73 of the Act. According to learned Counsel for the petitioners, Section 73 of the Act has no relevance in the present case. The matter of the petitioners is that it is clearly admitted that a suit is maintainable against the public trust but it can be filed only by a person who obtains a direction for filing the suit from the Assistant Commissioner, Devasthan Department, Government of Rajasthan. As per learned Counsel for the petitioners, while deciding the revision petition, this Court has erred in law while not deciding the question as to who is competent authority from whom the sanction file filing the suit is to be obtained. Therefore, this vital question is required to be adjudicated which is not adjudicated in the revision petition. It is argued that this Court has erred in deciding the matter on the premises that the petitioners are claiming relief on the ground that suit is not maintainable whereas it was never argued that suit itself is not maintainable. On the contrary, it was admitted that any person interested in the Trust can file a suit but with the sanction of the Assistant Commissioner, Devasthan Department and not with the sanction of the Court.
It is also pointed out that the petitioners have not claimed any right to object to filing of the suit but still can be filed with the sanction of the Assistant Commissioner, Devasthan Department, Government of Rajasthan and not with the permission of the Court u/s 92, C.P.C. It is also argued that Section 29 of the Act which is taken into consideration for deciding the controversy has no relevance in the present matter. Therefore, the judgment under review is required to be re-considered and the matter is required to be decided on the premises that provisions of Section 44 do not give any right but only amend Section 92, C.P.C. and this argument was advanced before the Court in the revision petition that the CPC is general law and Section 92 thereof stands amended by Section 44 of the Act of 1959. Therefore, error apparent on the face of record deserves to be reviewed. In para 4 of the review petition, it is specifically mentioned that since the matter relates to public importance as to whether who is competent authority to grant sanction for filing suit, it will be in the interest of justice that the matter may be reconsidered as the provisions of review is nothing but a matter to reconsider the matter to be considered.
Learned Counsel for the petitioners invited attention of the Court towards the following judgments:
(1) Surjit Singh and others Vs. Union of India and others,
(2) (1993) 4 (Suppl) SCC 595
(3) Board of Control for Cricket, India and Another Vs. Netaji Cricket Club and Others,
(4) S. Bagirathi Ammal Vs. Palani Roman Catholic Mission,
While inviting attention towards these judgments, it is submitted that the Hon''ble Supreme Court has held that if any error has been committed while deciding the matter or any part is left and not adjudicated, then, in review, the matter, can be reconsidered, therefore, it is submitted that this matter may be reconsidered and important aspect of matter which relates to public importance as to whether who is competent authority to accord sanction for filing suit may be decided in the interest of justice while allowing this review petition. In para 4, it is specifically submitted that provision of review is nothing but to reconsider the matter, therefore, this review petition may be accepted.
I have considered the arguments advanced by learned Counsel for the petitioners and considered the judgments cited by learned Counsel for the petitioners.
First of all, the scope of review is to be seen. The petitioners are seeking review of the order passed in the revision petition. The relevant provisions of review provided u/s 114 of the CPC and Rule 1, Order XLVII, C.P.C. read as under:
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 this 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.
Order XLVII
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 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.
Explanation.-- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be ground for the review of such judgment.
Upon perusal of the above provisions, it is apparently clear that scope of review is very limited. Error apparent on the face of record can be rectified while exercising the power or review. Petitioners have prayed for reconsideration by way of review, therefore, revisional power of the High Court is required to be seen. Section 115, C.P.C. is as follows:
Revision.-- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears,-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
(3) a revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
Explanation.-- In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding."
Upon perusal of above provisions, it is obvious that while deciding the revision petition, the High Court has jurisdiction to call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears, (a) to have exercised a jurisdiction not vested in by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, then, the High Court may make such order in the case as it thinks fit.
in this connection, it is very relevant to mention here that the legality and propriety of the order passed by the learned trial Court dated 28.2.2009 which was under challenge in the revision petition was examined by which the learned trial Court decided application filed by respondent-plaintiffs u/s 92, C.P.C. for leave to file suit. Therefore, the scope of revision was to adjudicate whether the said order was in consonance with law or not or any illegality or material irregularity has been committed by the trial Court while exercising jurisdiction so vested in the trial Court or the trial Court has failed to exercise the jurisdiction so vested in it and, further, the learned trial Court acted in the exercise of jurisdiction illegally or with material irregularity.
The scope of revision was, therefore, to adjudicate upon the validity of the order dated 28.2.2009. The contention of the petitioners is that no argument was made before this Court that suit is barred. More so, a ground was raised that the suit can be fried out who can grant selection for filing suit against public trusts, whether Civil Court or Assistant Commissioner, Devasthan Department. In this regard, reply filed by the petitioner-defendants before the trial Court is required to be seen. Out of all the petitioners, petitioner No. 6 Sampat Lal filed his reply which is on record as Ex. 5 to the application filed u/s 92, in which, it is specifically pleaded that suit is barred which is pleaded in para 11 and 12 that Under Sections 73 and 44 of the Act civil Court has no jurisdiction to decide the controversy. Para 9 to 15 of the reply, Exhibit 5 run as under:
9- ;g fd oknhx.k us ewfrZ Jh iqujklj guqeku th fLFkr xkao iqujklj rglhy JhMwaxjflag ftyk chdkusj dks lkoZtfud izU;kl ekudj okn vLFkkbZ fu"ks/kkKk ,oa /kkjk 92 lh-ih-lh- dk izkFkZuk i= U;k;ky; esa izLrqr fd;k gS rFkk izfroknh ua- 1 dks lkoZtfud izU;kl ds rkSj dfFkr izU;kl n''kkZ dj i{kdkj Hkh cuk;k gSA
10- ;g fd izfroknh ua- 1 dfFkr izU;kl us lkoZtfud izU;kl ?kksf"kr o 18 jktLFkku yksd U;kl vf/kfu;e] 1959 ds rgr is''kdh gqbZ gS A ftlesa g; r; gksuk gS fd vk;k izU;kl vfLrRo esa gS ;k ugh vk;k og lkoZtfud izU;kl gS ;k ugh gS rFkk of.kZr lEifRr yksd izU;kl dh gS ;k ugh A
11- ;g fd /kkjk 73 jktLFkku yksd U;kl vf/kfu;e] 1959 }kjk mijksDr iz''uksa ds lquus o fu.kZ; djus ds vf/kdkj ls flfoy U;k;ky; dks oafpr fd;k x;k gS A
12- ;g fd /kkjk 44 jktLFkku yksd U;kl vf/kfu;e] 1959 }kjk /kkjk 92 o 93 lh-ih-lh- dks yksd U;klks ij ykxw gksuk oftZr fd;k x;k gS A
13- ;g fd oknhx.k dk okn vLFkkbZ fu"ks/kkKk o /kkjk 92 lh-ih-lh- dk izkFkZuk i= ckMZ ckbZ ykW gS A
14- ;g fd /kkjk 92 lh-ih-lh- dk izkFkZuk i= vLi"V o vfuf''pr gS A /kkjk 92 esa of.kZr fdl izko/kku ds rgr U;k;ky; dk gLr{ksi pkgk x;k gS ;g ugh mYysf[kr fd;k x;k gS A izkFkhZx.k lkQ gkFkksa ls U;k;ky; ds le{k ugh vk;s gS izkFkhZx.k dksbZ vuqrks"k ikus ds vf/kdkjh ugh gS A
15- ;g fd /kkjk 92 lh-ih-lh- bu izdj.k ij ykxw ugh gS] uk gh ,slh dksbZ fLFkfr gS] uk of.kZr dh xbZ gS ftldh otg ls /kkjk 92 ds lh-ih-lh- ds rgr U;k;ky; ls gLr{ksi pkgk tk lds A bl izdj.k esa /kkjk 92 lh-ih-lh- ds rgr U;k;ky; ds gLr{ksi dh dksbZ u rks dksbZ ifjfLFkfr gS] uk gh vko;''drk gS A
Petitioner No. 4 filed the following reply, Exhibit-6:
13- ;g fd izfroknh ua- 1 dfFkr izU;kl us lkoZtfud izU;kl ?kksf"kr djkus o nsoLFkku foHkkx eas iathdj.k djkus dh dk;Zokgh /kkjk 17 o 18 jktLFkku yksd U;kl izU;kl vfLrRo esa gS ;k ugha] vk;k og lkoZtfud izU;kl gS ;k ugh gS rFkk of.kZr lEifRr yksd izU;kl dh gS ;k ugha A
14- ;g fd /kkjk 73 jktLFkku yksd U;kl vf/kfu;e] 1959 }kjk mijksDr iz''uksa ds lquus o fu.kZ; djus ds vf/kdkj ls flfoy U;k;ky; dks oafpr fd;k x;k gS A
15- ;g fd /kkjk 44 jktLFkku yksd U;kl vf/kfu;e] 1959 ds }kjk /kkjk 92 o 93 lh-ih-lh- dks yksd U;klks ij ykxw gksuk oftZr fd;k x;k gS A
16- ;g fd /kkjk 92 lh-ih-lh- ds rgr izLrqr izkFkZuk i= vLi"V ,oa vfuf''pr rFkk viw.kZ gS A /kkjk 92 lh-ih-lh- bl izdj.k ij ykxw ugh gksrh gS uk gh ,slh dksbZ fLFkfr gS uk gh ,slh fLFkfr of.kZr dh xbZ ftldh otg ls /kkjk 92 lh-ih-lh- ds rgr U;k;ky; ls gLr{ksi pkgk tk ldsa A izkFkhZx.k Clean Hands ls U;k;ky; ds le{k mifLFkr ugh gq, gS A vr% izkFkZuk i= e; [kpkZ o gtkZ [kkfjt fd;s tkus ;ksX; gS A
Third reply, Exhibit-7 was filed by petitioner No. 1. Relevant para 22 to 26 run as under:
22- ;g fd izkFkhZx.k@oknhx.k us eqfrZ Jh iqujklj guqeku th fLFkr xzke iqujklj rglhy Jh Mqxjx< ftyk chdkusj dks lkoZtfud izU;kl ekudj okn vLFkkbZ fu"ks/kkKk ,oa /kkjk 92 lh-ih-lh- dk izkFkZuk i= U;k;ky; gktk eas izLrqr fd;k gS rFkk izfroknh ua- 1 dks lkoZtfud izU;kl ds rkSaj ij dfFkr izU;kl n''kkZ dj Ik{kdkj Hkh cuk;k gS A
23- ;g fd izfroknh ua- 1 dfFkr izU;kl us lkoZtfud izU;kl ?kksf"kr djkus o nsoLFkku foHkkx esa iathdj.k djkus dh dk;Zokgh /kkjk 17 o 18 jktLFkku yksd U;kl vf/kfu;e] 1959 ds rgr is''k dh gqbZ gS A ftlesa ;g r; gksuk gS fd vk;k izU;kl vfLrRo esa gS ;k ugh vk;k og lkoZtfud izU;kl gS ;k ugh rFkk of.kZr lEifRr yksd izU;kl dh gS ;k ugha A
24- ;g fd /kkjk 73 jktLFkku yksd U;kl vf/kfu;e 1959 }kjk mijksDr iz''uksa dks lquus o fu.kZ; djus ds vf/kdkj ls flfoy U;k;ky; oafpr fd;k x;k gS A
25- ;g fd /kkjk 44 jktLFkku yksd U;kl vf/kfu;e] 1959 ds }kjk /kkjk 92 o 93 lh-ih-lh- dks yksd U;klksa ij ykxw gksuk oftZr fd;k x;k gS A
26- ;g fd /kkjk 92 lh-ih-lh- ds rgr izLrqr izkFkZuk i= vLi"V ,oa vfuf''pr rFkk viw.kZ gSA /kkjk 92 lh-ih-lh- bl izdj.k ij ykxw ugh gksrh gS uk gh ,slh dksbZ fLFkfr gS uk gh ,slh fLFkfr of.kZr dh xbZ ftldh otg ls /kkjk 92 lh-ih-lh- ds rgr U;k;ky; ls gLr{ksi pkgk tk ldsa A izkFkhZx.k Clean Hand ls U;k;y; le{k mifLFkr ugh gq, gS A vr% izkFkZuk i= e; [kpkZ ,oa gtkZ [kkfjt fd;s tkus ;ksX; gS A
Reply was also filed by petitioners Mangu Ram, Shanti Lal, Param Nath, Rughnath, Manoj and Kana Ram. Relevant extract from para No. 13 to 16 of the said reply, Exhibit-8 read as follows:
13- ;g fd izfroknh ua- 1 dfFkr izU;kl us lkoZtfud izU;kl ?kksf"kr djkus o nsoLFkku foHkkx esa iathdj.k djkus dh dk;Zokgh /kkjk 17 o 18 jktLFkku yksd U;kl vf/kfu;e] 1959 ds rgr is''k dh gqbZ gS A ftles ;g r; gksuk gS fd vk;k izU;kl vfLrRo eas gS ;k ugh] vk;k og lkoZtfud izU;kl gS ;k ugh rFkk of.kZr lEifRr yksd izU;kl dh gS ;k ugh A
14- ;g fd /kkjk 73 jktLFkku yksd U;kl vf/kfu;e] 1959 }kjk mijksDr iz''uks ds lquus o fu.kZ; djus ds vf/kdkj ls flfoy U;k;ky; dks oafpr fd;k x;k gS A
15- ;g fd /kkjk 44 jktLFkku yksd U;kl vf/kfu;e] 1959 ds }kjk /kkjk 92 o 93 lh-ih-lh- dks yksd U;klksa ij ykxw gksuk oftZr fd;k x;k gS A
16- ;g fd /kkjk 92 lh-ih-lh- ds rgr izLrqr izkFkZuk i= vLi"V ,oa vfuf''pr rFkk viw.kZ gS A /kkjk 92 lh-ih-lh- bl izdj.k ij ykxw ugha gksrh gS uk gh ,slh dksbZ fLFkfr gS uk gh ,slh fLFkfr of.kZr dh xbZ ftldh otg ls /kkjk 92 lh-ih-lh- ds rgr U;k;ky;ls gLr{ksi pkgk tk lds A izkFkhZx.k Clean Hand ls U;k;ky; ds le{k mifLFkr ugh gq, gS A vr% izkFkZuk i= e; [kpkZ ,oa gtkZ [kkfjt fd;s tkus ;ksX; gS A
Upon perusal of the afore-quoted replies, filed to application u/s 92, it is abundantly clear that the controversy before the trial Court was whether the suit is barred u/s 73 and 44 of the Act and whether application filed u/s 92 and 93 of the Act for seeking leave of the Court to file suit was maintainable and specific objection was raised before the trial Court in the said replies. Therefore, while adjudicating upon the revision petition filed by the petitioners against the order dated 28.2.2009 Sections 44 and 73 of the Act were taken into consideration and mater was adjudicated after thorough examination. Contention of the petitioners has no substance that they never objected that suit cannot be filed and controversy was to the extent that who will grant sanction for filing suit, whether the Assistant Commissioner, Devasthan Department or the Court.
According to basic principle of law, the legality and propriety of the order under challenge was to be seen on the basts of the pleadings. Here, in this case, even if any argument is raised which is not even pleaded in the trial Court nor adjudicated cannot be taken into consideration while deciding the revision petition. The duty of the revisional Court Is to see only the legality and propriety of the order impugned. In the instant matter, the petitioners while inviting attention of this Court towards judgment reported in S. Bagirathi Ammal Vs. Palani Roman Catholic Mission, are seeking reconsideration on the premises that the Hon''ble Supreme Court has appreciated the order of review passed by the High Court in which the High Court reviewed its order and re-considered the matter and rectified the error. But, in this case, in my opinion, the revision petition was decided on the basis of the relevant argument, pleading and scanning the order impugned and objection so raised before the trial Court by the petitioners which is mentioned in ground (B) of the revision, in which it is specifically pleaded before this Court also that since provisions of Sections 92 and 93 do not apply to public trusts the suit filed by the plaintiff-respondents is not maintainable and the learned trial Court has no jurisdiction to entertain the suit and order under challenge is ab initio void. Upon perusal of the whole of the revision petition, it is revealed that It is nowhere stated by the petitioners that vital question of law is that petitioners are not objecting to the suit but only objecting that who can grant sanction to file the suit. Therefore, if any irrelevant or unpleaded argument is advanced during the course of argument, then, in my considered opinion, it is not obligatory upon the Court to decide the controversy ignoring the pleadings and to decide the matter upon the oral arguments advanced before the Court. It is the duty of the Court to decide the matter on the basis of the pleadings and in whole of the pleadings there is no assertion by the petitioners that they are not objecting to filing of the suit but only objecting that who can grant sanction to file suit against the petitioners. The controversy which is raised orally is altogether different to the pleadings of the matter. No error apparent on the face of record is made out in this review petition to review/reconsider order dated 28.7.2009 passed in the revision petition. There is thus no substance in this review petition.
Hence, this review petition is rejected.