Maringmei Khuripo vs Langkhanpau

Ramalingam Sudhakar, CJ

[1] Heard Mr. N. Umakanta, learned counsel appearing for the petitioner and Mr. A. Golly, learned counsel appearing for the respondent.

[2] The Civil Revision Petition has been filed under Article 227 of the Constitution of India, seeking to set aside the order dated 12.09.2018 passed in Judicial Miscellaneous Case No. 33 of 2018, on an application filed under Order XLVII Rule 1 of the CPC read with Sections 114 and 151 of CPC. This Judl. Misc. Case No. 33 of 2018 was dismissed, therefore, the petitioner is before this Court.

[3] The revision petitioner is the defendant in the Original (Declaratory) Suit No. 3 of 2014 where the respondent‟s father was the plaintiff. The plaint sought for the relief of continuing as Chief of Lamdan Kabui Village. The suit was filed before the Civil Judge (Senior Division) Churachandpur. The respondent herein, claims to be the son of the deceased/plaintiff. In the suit filed by the deceased plaintiff, there is also application for interlocutory relief seeking a right to continue in the office of the Chief of the village which was declined by the Court below.

[4] Aggrieved by that, the deceased plaintiff filed an appeal being Civil Misc. Appeal No. 2 of 2014. The appeal was pending before the District Judge, Churanchandpur, and in the meanwhile, it appears that the plaintiff died on 07.09.2014. The respondent herein claiming to be the son of plaintiff / late Maringmei Thaitoungam of Lamdan Kabui Village, Churachandpur District, filed Judicial Miscellaneous Case No. 31 of 2014 to bring him as Legal Heir in the case, which was disposed of on 18.09.2014 in the following manner:

" This is an application under Order XXII Rule 3 of C.P.C. filed by the above named Petitioner for allowing him to be the Legal heir of the Appellant on the ground that the Appellant had died on 7-9-2014 at his residence.

Register it.

Perused the copy of the application is made furnished to the Ld. Counsel for the Respondent. There is no dispute in the matter that the said Appellant is no more alive. The application is also found registered within time.

In result, the application is allowed.

Announced."

[4] Since the respondent in the application / defendant in the suit appearing through the junior counsel did not seriously object, the petition was allowed. Therefore, Judicial Misc. Case No. 33 of 2018 was filed by defendant to review the order dated 18.09.2014. The matter was not proceeded further because of want of Presiding Officer. After a long hiatus of 4 years, the Presiding Officer took up the case and at the moment, the applicant/defendant realized that there were some defects in the review petition and therefore, sought permission of the Court to withdraw the petition and file a fresh petition. This was allowed on certain conditions.

[5] It is stated by Mr. N. Umakanta, learned counsel for the petitioner/defendant and also confirmed by the respondent‟s counsel, Mr. A. Golly that the Court gave 7 days‟ time to file the amended or modified review petition. However, the revision petitioner filed it after a period of 11 days.

Be that as it may, the review petition was renumbered as Judl. Misc. Case No. 33 of 2018 and contested by both the parties. After hearing either side, the Court while examining the scope of review filed under Order XLVII Rule 1 of the CPC read with section 114 and 151 of CPC, was of the view that the order dated 18.09.2014 passed in Judl. Misc. Case No. 31 of 2014 was a consent order. Therefore, review or appeal against such consent order is not maintainable. The Court below also went into the scope of review and observed in para 12 that the application filed in terms of section 114 of CPC is not an error. The Court below also relied upon the decision in the case of State of Maharashtra v. Ramdas Shrinivas Nayak & Anr. reported in AIR 1982 SC 1249, wherein it is held that what is recorded in the judgment of the Court, are conclusive and no person could be allowed to contradict such statement made by the Court. In para No. 16, the Court below held as follows:

"16. Thus in the light of the aforesaid observation and directions of the Hon‟ble Apex Court and on considering the rival submissions of both sides in the instant case, I am of the opinion that there is no exceptional cause shown by the Respondent/Applicant for review of the order dated 18.09.2014 in Judicial Misc. Case No. 31 of 2014. As such the Respondent/Applicant have miserably failed to show any of the sufficient grounds for invoking the review jurisdiction of this court in order to review the order dated 18.09.2014 passed by this court in Judicial Misc. Case No. 31 of 2014."

[6] Learned counsel for the petitioner relying upon the case of Board of Control for Cricket, India and another Vs. Netaji Cricket Club and others reported in AIR 2005 SC 592, pleaded that the review in this case can be considered because the „sufficient reason‟ as envisaged in terms of Order XLVII Rule 1 of the CPC, is wide enough to include misconception of the fact or law by a Court and even an advocate. Relevant Para 88, 89 & 90 read as follows:

"88. 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 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. 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.

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 O. 47, R. 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."

[7] The respondent counsel argued that since the respondent/LR of the deceased plaintiff has been brought in as an LR, the appeal against the interlocutory order of the Trial Court could be heard on merit. The petitioner is always entitled to raise his objection at the time of hearing of the appeal against the interlocutory order that the respondent/L.R. of the deceased plaintiff has no locus standi to pursue the appeal or the suit. This statement made by the respondent appears to be fair.

[8] The suit is pending trial and the interlocutory application was not decided in favour of the plaintiff. The appeal was filed against the order of the Civil Judge declining the interlocutory relief. While the appeal against such order of the Trial Court was pending, the plaintiff/appellant died and therefore, the L.R. have been brought on record in the pending suit and the appeal.

[9] The core issue is this appeal which is a continuation of the trial proceeding is that the revision petitioner is entitled to raise his objection on the very nature of claim made by LR of the deceased plaintiff. If the respondent/plaintiff is not entitled to prosecute the appeal as legal heir of deceased plaintiff, he has a right to be at least heard on the objection made by the defendant on maintainability of the appeal and the suit.

[10] The LR has been brought on record but the main appeal being Civil Misc. Appeal No. 2 of 2014 is pending before the appellate Court i.e. Court of District Judge, Churachandpur and therefore, there should not be any impediment of the parties to prosecute the appeal being Civil Misc. Appeal No. 2 of 2014 on merit including the right of the revision petitioner/defendant to raise preliminary objection that the respondent/legal heir of the plaintiff is not entitled to prosecute the appeal or the suit.

[11] In this view of the matter, the revision petitioner/defendant has raised a preliminary issue as to whether the respondent/ legal heir of the late appellant/plaintiff will be entitled to prosecute the appeal or the suit. That can be decided in Civil Misc. Appeal No. 2 of 2014 pending before the Court below, which is said to be listed on 08.10.2018 for hearing. This will be taken up as preliminary issue.

The respondent counsel also has no serious reservation for proceeding further in the matter as above.

[12] Accordingly, this Court does not find any reason to interfere with the impugned order of the District Judge, Churachandpur. The revision petitioner/defendant is entitled to raise the preliminary objection at the time of hearing of the appeal said to be listed on 08.10.2018 before the appellate court.

[13] The petition is disposed of as above.