Paramjit Singh vs Financial Commissioner, Chandigarh

K.C. Gupta, J.—Briefly stated, the facts are that Manna Singh s/o Sh. Dhana Singh was father of Paramjit Singh). Jaswant Kaur and Gurbachan Kaur and grandfather of Gurpreet Singh son of Paramjit Singh, who are petitioners in Civil Writ Petition No. 6057 of 1983.

The acquired evacuee agricultural land comprised in Khasra No. 1028/880/456-57 bearing property No. B-XII/2131-2133 situated in the revenue estate of Taraf Gotilewal, Ludhiana, was put to public auction by the Rehabilitation Department, Government of India on 19.2.1966. Manna Singh father of Paramjit Singh etc. gave the highest bit of Rs. 1,09,500/- as against the reserved price of Rs. 75,000/-. The said bid was accepted by the Managing Officer vide letter dated 16/22.4.1966, copy of which is Annexure P-1 with the writ petition. He was directed to deposit the balance amount of Rs. 87,600/- after adjusting the sum of Rs. 21,900/- received as earnest money into the Government Treasury within 15 days of the receipt of the letter. However, Manna Singh could not deposit the balance amount and requested for extension of time for payment of the balance amount. Ultimately, extension was granted upon 31.10.1966 by the then Regional Settlement Commissioner, acting as Chief Settlement Commissioner, as the powers were delegated to him under Rule of 90 the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 and this order was made on 4.10.1966 (copy of which is Annexure P-2 with the writ petition).

Sh. Manna Singh submitted the duly verified claims of his associates alongwith the affidavits in payment of the balance amount of Rs. 87,600/- within the extended period. Vide letter dated 30.12.1970, An-nexure P-3 with the writ petition, the District Rent and Managing Officer informed Manna Singh that it had been decided to transfer the possession of the land in dispute on a provisional basis and he was further directed to take possession of it.

However. Manna Singh could not take possession of the suit land and he was obstructed by S/Shri Har-bans Lal, respondent No. 3 and Kasturi Lal, respondent No. 4 (now dead) represented by his legal representatives, Bhupinder Nath etc. They even filed a suit for permanent injunction against Manna Singh for restraining him from taking possess ion of the land in dispute which was ultimately dismissed by Senior Sub-Judge, Ludhiana on 22.2.1971.

On 6.4.1971, S/Shri Harbans Lal and Kasturi Lal (now deceased) filed a revision petition against the order dated 4.10.1966 of the Regional Settlement Commissioner, Punjab. Jalandhar. and against the order dated 29/30.12.1970 of Managing Officer, Government of India, Ministry of Rehabilitation, ordering the delivery of possession of the land in dispute to Manna Singh in the Court of Chief Settlement Commissioner, Punjab, Jalandhar. However, Sh. J.S. Qaumi, acting as Chief Settlement Commissioner, Punjab, Jalandhar, vide his order dated 22.11.1971, accepted the revision petition of Harbans Lal and Kasturi Lal and the sale held by auction on 19.2.1966 in favour of Manna Singh was set aside. The copy of the order passed by Sh. J.S. Qaumi is Annexure P-4 with the writ petition.

Mr. Manna Singh challenged the said order of the Chief Settlement Commissioner u/s 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as "the Act") by way of revision petition before respondent No. 1, Financial Commissioner, Revenue and Secretary of Government of Punjab, Rehabilitation Department, which was, however, dismissed vide order dated 23.4.1974, Annexure P-5 with the writ petition.

Since Manna Singh had challenged the jurisdiction of Sh. J.S. Qaumi, Acting as Chief Settlement Commissioner, who passed the order Annexure P-4 and this point was not decided by respondent No. 1 alongwith other important issues, so he preferred an application for setting aside the orders Annexures P-4 and P-5 by way of review in October, 1974 which was dismissed on 25.1.1983. The copy of the application is Annexure P-6 and the order passed Ihereon is Annexure P-7 with the writ petition. During the pendency of the review application, the property in dispute was transferred to respondent Nos. 5 to 9 vide Annexures AR4, AR5 and AR6.

Aggrieved by the said order, Paramjit Singh, son, Gurpreet Singh, minor grandson, Jaswant Kaur and Gurpreet Kaur, daughters, filed Civil Writ Petition No. 6057 of 1983 and challenged the orders of respondent Nos. 1 and 2, Annexure P-4 to P-7 being illegal, without jurisdiction, void and unjustified. The said writ petition was admitted on December 23, 1983, which was ordered to be heard alongwith L.P.A. No. 1202 of 1983. Subsequently, L.P.A. No 1202 of 1983 was dismissed and it was held that Sh. J.S. Qaumi had jurisdiction to decide the matter as there was notification conferring powers to him. The writ petition was also dismissed by the learned Single Judge vide judgment dated 2.1.1995.

Paramjit Singh etc. filed review petition bearing R.A. No. 48 of 1995 in Civil Writ Petilion No. 6057 of 1983 under Order 47 Rules 1 and 2 read with Section 151 C.P.C. for review of the order dated 2.1.1995 as according to them, their counsel had not fully addressed the arguments and they were not aware of the order passed on 2.1.1995 and came to know about it only on 17.2.1995 when the respondents approached the Tehsildar Sales, Ludhiana, to get the ownership recorded in their names and one of the petitioners happened to be present there. The respondents filed reply to the review petition and stated that the same had been filed with mala fide intention and was not maintainable and as such the same should be dismissed. The learned Single Judge vide order dated 23.1.1978 dismissed the review petition.

Petitioner Nos. 1 and 2, thereafter, fiied Letters Patent Appeal against the order dated 2.1.1995 bearing L.P.A. 100 of 1998.

In the said Letters Patent Appeal, they filed an application u/s 5 of the Limitation Act for condoning the delay in filing the appeal, which was registered as Civil Misc. No. 279 of 1998. The allegations were that after they came to know about the dismissal of the writ petition, they were advised to file a petition for recalling the order of dismissal of the writ petition and they bona fide accepted the advice and filed the petition for recalling the order, which was entertained by the learned Single Judge, who not only issued notice to the other side but also stayed operation of the order under review; that after a period of three years and eleven days, the learned Single Judge was pleased to dismiss the petition for recalling the order and then got the certified copy of the order on 10.9.1998 and, thus, they prayed that the time spent bona fide in pursuing the petition for recalling the order and also the time spent in obtaining the certified copy of the order of the learned Single Judge be excluded and after excluding the said period, the Letters Patent Appeal was within time.

Respondent Nos. 3 and 5 to 8 filed separate replies opposing the application for condonation of delay and stated that the L.P.A. was barred by time and there was no sufficient cause pointed out for condoning the delay. They further stated that the only remedy available to the applicants against the order of the learned Single Judge was the appeal at that time, which they did not file and having chosen to file an application to review, they were not competent to file the present L.P.A.

Order XLVII Rule 1 of the CPC reads as under :-

"1. 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 of 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.

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 a ground for the review of such judgment."

Section 114 of the CPC is also on the same line.

Therefore, according to the aforesaid provisions, the review application is only maintainable on behalf of the person aggrieved by a decree or order from which an appeal is allowed, but no appeal had been preferred or by a decree or order from which no appeal is allowed. It is not the case that the petitioners could not file Letters Patent Appeal, it is also not the case that from the judgment of the learned Single Judge, Letters Patent Appeal was not maintainable. It is also not further the case that some new and important matter or evidence had been discovered later on which the petitioners could not discover earlier after the exercise of due diligence and as such the judgment should be reviewed. Thus, they had in fact no bona fide right to file the review. It is mentioned in Para No. 2 of the application that the appellants (applicants) were advised to file a petition for recalling the order of dismissal of the writ petition. The name of the counsel who had advised them to file a petition for recalling the order of dismissal of the writ petition has not been mentioned. There is no affidavit of that counsel to the effect that he bona fide believed that the appellants (writ petitioners) should file review petition. It is not the case of the appellants (writ petitioners) that they were wrongly advised by their counsel to file the review petition. In fact, there was no justification on their part to continue the review petition for a period of three years and eleven days. It was rather misuse and abuse of the process of law. It is also not the case that the appellants (writ petitioners) had not at all appeared. On the other hand, the learned Single Judge, in his order dated 23.1.1998, had observed as under :-

"It is unfortunate that even though the matter is fixed for re-hearing, no one has chosen to appear on behalf of the petitioners. Repeated reminders were sent to the bar to secure the presence of learned counsel for the petitioners. It is 12.35 P.M. However, as mentioned above, no other argument was raised and the matter was adjourned for re-hearing enabling the counsel for the petitioners to point out some other point that was available to the petitioners. I have gone through the grounds seeking the desired relief in the writ petition with the help of Mr. Sarin, learned counsel appearing on behalf of the respondents. There is hardly any other ground taken in the matter but for challenging the competence of Mr. J.S, Qaumi to hear and decide the matter."

This shows that the counsel for the appellants (writ petitioners) had earlier argued the matter and it was only fixed on 2.1.1995 for rehearing, when their counsel did not appear. The main stress was on the competency of Sh. Qaumi to hear and decide the matter. No other important ground was mentioned for review except the one which had already been noticed by learned Single Judge in his order dated 2.1.1995. The learned Single Judge, in his order, has observed that nothing substantial had been pleaded to make it out really a case if any other grounds were taken in the writ petition besides the one challenging the jurisdiction of Mr. J.S. Qaumi to decide the matter. In our opinion, after the dismissal of the writ petition on 2.1.1995, the appellants (writ petitioners) had two options either to file Letters Patent Appeal or a review application. Having chosen to file an application for review, they cannot now say that the said remedy was wrong. Thus, there is no ground for condoning the delay. The appellants (writ petitioners) had not filed the review petition bona fide and they were not continuing it diligently and as such there is nojustification for condonation of delay. The authorities Roshan Lal Soni v. Jagan Nath 1999(4) RCR 596, Mulkh Raj and others v. Gurditta Shah Hart Chand 1939(30) P.L.R. 283 and Dullo Mal-Ram Lal v. Ganga Ram-Lalji Ram AIR 1929 Lah 824 are not applicable to the facts of the present case. In Roshan Lal''s case (supra), it was held that where review application is dismissed without altering, changing or in any way effecting the original decree, fresh plea of limitation would not become available to the applicant. In Mulkh Raj''s case (supra), the appellant had filed an application for review, which was granted but was disallowed in appeal on the point of law. In such circumstances, it was held that there was a sufficient ground to condone the delay as it was prosecuted in good faith by the appellant and the application for review was in fact granted but was subsequently reversed on a point of law. In Dullo Mal''s case (supra), it was found by the Court that the appellant had prosecuted a petition for review with due diligence, so, the time spent in prosecuting the infructuous application was excluded as it was held to be a sufficient cause within the meaning of Section 5 of the Limitation Act for not preferring the appeal in time. In the present case, there is no finding that the appellants (writ petitioners) prosecuted their application for review with due diligence and in good faith. In fact, there is no sufficient ground to condone the delay in filing the Letters Patent Appeal and as such it is rejected.

Appeal dismissed.