Rashida Khatoon (Respondent No.1 In Second Appeal) vs Ashiq Ali and Others

N.K. Mehrotra, J.—This is a review petition under Order XLVII of the Code of Civil Procedure read with chapter IX Rule 7 of the Rules of the Court, 1952 to review the judgment and decree dated 5.10.2004 passed by this Court in Second Civil Appeal No.626 of 1980 Ashiq Ali and others v. Smt. Rashida Khatoon and another by which the appeal was allowed and the suit of Rashida Khatoon, the applicant was dismissed.

The material facts, which will be decisive to decide the review petition, are that Smt. Rashida Khatoon, the reviewpetitioner filed a suit against Usman, Abo Mohammad and Mashooq Ali for declaration that she was the owner and in possession of the disputed house on the basis of a giftdeed executed by Abdul Haq alias Hukka. Admittedly, Abdul Haq alias Hukka had left behind three daughters namely; Mst. Khairulnisha, Qamrulnisha alias Kumul and Jauharulnisha. This house in suit was being looked after by Mst. Jauharulnisha and Usman being heirs of Abdul Haq alias Hukka. Defendant No.2 Abo Mohammad was in permissive possession of a shop in this house and he had constructed this shop after taking permission of Usman, the defendant No.1 and subsequently, it was let out to Abo Mohammad. Later on Jauharulnisha executed a saledeed on 8.3.1972 and Usman and Rauf executed another saledeed on 31.3.1972 in respect of the house in suit in favour of the defendant Nos.2 and 3.

The suit was contested by all the three defendants namely; Usman, Abo Mohammad and Mashooq Ali. A joint written statement was filed by them to contest the suit. The suit of Smt. Rashida Khatoon (the reviewpetitioner) was decreed against all the defendants. All the three defendants namely; Usman, Abo Mohammad and Mashooq Ali filed first appeal, which was dismissed by the 1st Additional District Judge, Faizabad.

Out of the aforesaid three named defendants, two defendants namely; Abo Mohammad and Mashooq Ali filed the second appeal against Smt. Rashida Khatoon (plaintiffrespondent/Reviewpetitioner) impleading Usman as respondent no.2. The case of the appellant Nos.1 and 2 who filed the second appeal and the respondent Usman is the same.

Abo Mohammad, the appellant, died during the pendency of the second appeal and his heirs have been substituted and now there is no dispute about their proper substitution.

Usman, one of the defendants of the suit also died during the pendency of the second appeal. The Substitution Application No.216 of 2003 alongwith C.M. Application Nos.2163 of 2003 and 2164 of 2003 accompanying with an application under Section 5 of Limitation Act as well as for setting aside abatement was moved by the appellants. These three applications were taken up and the following order was passed on 15.1.2004:

�Issue notice to the proposed legal representative of respondent number 2. Respondent number 1 may also file objection, if any, against the substitution application, condonation of delay and setting aside abatement.

Sd/

(Justice K.S. Rakhra)�

On 23.1.2004 the following order was passed on the aforesaid three applications:

�Respondent No.2 has died. Application number 2162 of 2003 is for substitution in his place, Application No.2163 of 2003 is for condonation of delay in filing substitution application and application No.2164 of 2003 is for setting aside abatement. No objection has been filed. Applications are allowed. Let the amendment be incorporated. Learned counsel for the respondent Ms. Atiya Abid holding brief of Sri Mohd. Abid Ali, Advocate, may seek instructions from newly substituted respondent.

Sd/

(Justice K.S. Rakhra)�

It is to be noted here that Ms. Atiya Abid, is a junior Advocate of Shri Mohd. Abid Ali, Advocate of plaintiffrespondent Smt. Rashida Khatoon, the reviewpetitioner. It is also to be noted here that sufficient opportunity was given to the counsel for the respondent No.1 Mohd. Abid Ali who was represented through Ms. Atia Abid holding brief of her senior.

After these three applications being allowed, the memo of appeal was amended and the appeal was listed for final hearing.

As the case of the defendantappellants and the defendantrespondent Usman was the same, nobody appeared from the side of Usman and the appeal was heard on merit by hearing Shri Mohd. Arif Khan, the learned counsel for the defendantappellant and Shri Mohd. Abid Ali, the learned counsel for the plaintiffrespondents, the reviewpetitioner Smt. Rashida Khatoon and the judgment deciding substantial questions of law arising out from the judgment of the two courts below was delivered on 5.10.2004. The appeal of defendantappellants has been allowed against Smt. Rashida Khatoon, the plaintiffrespondent and the reviewpetitioner. Admittedly, Usman was one of the defendant alongwith appellants of second appeal and so he is proforma respondent in second appeal.

It is to be noted here that it is the judgment against Smt. Rashida Khatoon and not against Usman who is one of the defendants in the suit.

After the pronouncement of the judgment, this review petition has been filed on 1.11.2004 by plaintiffrespondent on the ground that no notice has been served on the legal heirs of Usman, the proforma respondent No.2 in second appeal before or after the substitution of his legal heirs.

I have heard Shri Mohd. Abid Ali, the learned counsel for the reviewpetitioner. I have taken the assistance of Shri Mohd. Arif Khan, the learned counsel for the opposite parties in this review petition.

Section 114 of the Code of Civil Procedure is as follows:

�114. 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 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, Rule 1 of the Code of Civil Procedure is as follows:

�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 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 him 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 then review of such judgment.)�

Chapter IX Rule 7 of the High Court Rules, 1952 is as follows:

�7. Contents of memorandum of appeal or application for review or revision Every memorandum of appeal or application for review or revision shall state

(a) the name and address of each appellant or applicant and whether he was plaintiff or defendant or applicant or opposite party in the court of first instance;

(b) the name and address of each person whom it is proposed to join as respondent or opposite party and whether he was plaintiff or defendant or applicant or opposite party in the court of first instance;

(c) the name of the Court by which, and the name of the Presiding Officer by whom, the decree or order objected to was made;

(d) the number and description of the case;

(e) the date when the decree or order was made;

(f) the grounds, numbered consecutively, of objection to such decree or order;

(g) the precise relief sought;

(h) the values of the suit and appeal separately for purposes of (1) jurisdiction, and (2) Courtfees; and

(i) in the case of an appeal from an original decree, whether the suit out of which the appeal arises has already been before the Court on appeal;

and shall be signed by the appellant or applicant as the case may be, or on his behalf, by an advocate on the roll of the Court.

Where the particulars indicated in Clause (1) are not available at the time of filing of the appeal, they may be supplied as soon as available.�

Chapter XII Rule 4 of the High Court Rules, 1952 is as under:

�[Rule 4. Effect of nonpayment of processfee or cost or supply of notices within time If the requisite processfee or cost of issuing notice is not paid or the requisite notices are not supplied within the time prescribed in Rule 3 the case shall be listed for dismissal and shall be dismissed as against the persons who have not been served on account of the default unless on the case being called an application signed by the party or his Advocate or briefholder together with the requisite process fee cost or notices, as the case may be, is presented to the court or an application similarly signed discharging from the case the persons not served on account of the said default or withdrawing it as against them and the court deems fit to grant it.]

[Provided that in such cases in which the court has granted interim stay or inunction and the applicant fails to take necessary steps for service of notice, the office shall list the stay or injunction matter alongwith the default report before the court immediately on expiry of ten days from the last date by which such steps ought to have been taken by the party concerned;]

[Provided further that the power to condone the delay in supplying the requisite processfee or the notices etc. or to grant extension of time be delegated by the Chief Justice to the Registrar/Additional Registrar/Joint Registrar./ Where, in the opinion of the registrar/Additional Registrar/Joint Registrar, no case has been made out for condoning the delay, he shall direct the case to be listed for orders before the court.]�

The main argument of the learned counsel for the reviewpetitioner is that the substitution could not be allowed without service of notice on the proposed heirs of late Usman, the defendant No.1 in the original suit and respondent No.2 in the second appeal. It has been also argued that when the steps were not taken, the appeal must have been dismissed under Chapter XII Rule 4 of the High Court Rules. I do not find any force in the contention of the learned counsel for the reviewpetitioner and the grounds taken in the memo of the review petition. The provisions relating to power of the review constitute an exception to the general rule that when a judgment is signed and pronounced, it cannot be interfered or altered and hence a right of review is exercisable only where circumstances are distinctly covered by statutory exceptions.

A perusal of the whole review petition goes to show that it is not a case of discovery of new and important matter of evidence which after the exercise of due diligence was not within the knowledge of the petitioner. No mistake or error apparent on the face of the record in the judgment under review has been pointed out. What has been pointed out is the alleged error in the orders passed on the application for substitution of the legal heirs of late Usman. The Second appeal is decided on the substantial question of law whatever the substantial questions of law were formulated, those substantial questions of law relate to the dispute between Smt. Rashida Khatoon on one hand and Abo Mohammad, Mashooq Ali and Usman, on the other hand. Usman is one of the defendants in whose favour the judgment under review has been pronounced in the second appeal. The order of substitution in which the mistake has been alleged relates to Usman or his legal representatives.

If, any body is aggrieved by the order of substitution, they can be legal representatives of late Usman and not the applicant Smt. Rashida Khatoon. Smt. Rashida Khatoon has been given reasonable opportunity of hearing before the disposal of the substitution application of late Usman. She cannot be aggrieved by orders dated 15.1.2004 and 23.1.2004 cited above. The legal representatives of Usman have not filed this review petition.

Smt. Rashida Khatoon, the reviewpetitioner and the plaintiff in the suit can be aggrieved by judgment dated 5.10.2004 because the judgment was passed against her by dismissing the suit but she does not allege any ground as available either under Section 114 of the Code of Civil Procedure or under Order XLVII Rule 1 of the Code of Civil Procedure. Smt. Rashida Khatoon, the reviewpetitioner against whom the second appeal has been decided may have the right of appeal by way of special leave Petition before the supreme court and not by way of review of the judgment dated 5.10.2004 deciding the second appeal on merit because every order relating to substitution and the final judgment have been passed after giving due opportunity to Smt. Rashida Khatoon and the judgment under review is not against Usman but it is in favour of Usman and after his death his legal representatives and the defendantappellant.

The learned counsel for the reviewpetitioner, Shri Mohd. Abid Ali has argued that the fact that there was no service on the legal representatives of Usman was not within the knowledge of the counsel or Smt.Rashida Khatoon is not worth believable because the orders on the substitution application were passed in the presence of Ms. Atiya Abid holding brief of Mohd. Abid Ali and the second appeal was argued on merits by Mohd. Abid Ali himself.

In view of the aforesaid reasons, the review petition against the judgmentdated 5.10.2004 deciding the substantial questions of law between smt. Rashida Khatoon on one hand and Usman, Abo Mohammad and Mashooq Ali on the other, cannot be reviewed. In the review petition of Smt. Rashida Khatoon no ground available under Order XLVII Rule 1 of the Code of Civil Procedure or Section 114 of the Code of Civil Procedure, has been alleged so far as the judgment under review is concerned.

In view of the above, the review petition is dismissed.

(Petition dismissed)