Vinod Kumar Babuta vs Anil Kumar Babuta and Others

Indermeet Kaur, J.

CM No. 16776/2011 (exemption) in CM (M) No. 1040/2011

Exemption allowed subject to just exceptions.

CM (M) No. 1040/2011

The order impugned before this Court is the order dated 03.06.2011 which had dismissed the review petition of the Petitioner seeking review of the order dated 05.02.2010. In fact, there were two applications which had been filed by the Petitioner before the Trial Court; the first application was under Order 18 Rule 4 read with Order 47 Rule 1 of the CPC (hereinafter referred to as ''the Code'') and the second application was u/s 5 of the Limitation Act.

The gist of the two applications show that a review was sought of the order dated 05.02.2010. Record shows that an application under Order 11 Rule 14 of the Code had first been filed by the Plaintiff seeking permission to place on record certain documents which included a copy of Will dated 16.04.1980 purported to have been executed by the father of the Plaintiff in his favour; contention was that this Will has been received from the DDA office only now and as such could not be placed on record earlier. This application seeking permission to place on record this Will had been dismissed on 05.02.2010.

Record shows that the present suit was a suit for partition, declaration and permanent injunction; after the written statement had been filed, issues had been framed; thereafter, Plaintiff evidence closed on 06.10.2003; Defendant evidence was led and which was finally closed on 13.07.2009; it was only thereafter that this application under Order 11 Rule 14 of the Code had been filed; this application had been dismissed by a speaking order dated 05.02.2010; admittedly, no appeal has been filed against that order; the Petitioner had sought a review only. Although this application has sought a review of the order dated 05.2.2010; it has been filed under Order 47 Rule 1 of the Code read with the application is under Order 47 of the Code but the provisions of Order 7 Rule 14, Order 18 Rule 4 and Order 18 Rule 17 of the Code have also been appended. The prayer in the application, however, seeks a review of the order dated 05.02.2010 whereby his application under Order 11 Rule 14 of the Code had been dismissed.

The parameter and guidelines laid down for considering an application for review are contained in Order 47 of the Code; impugned order has rightly held that there is no error which is apparent on the face of the record or no fact is sought to be brought on record which after exercise of due diligence was not within the knowledge of the Petitioner at the time when the impugned order was passed; in fact, there is not a single averment of this kind in the review application. The review petition was thus rightly dismissed; the impugned order in no manner calls for any interference.

The powers of superintendence available to this Court under Article 227 of the Constitution of India are to be exercised only when there is a patent illegality or a manifest error which is apparent on the face of the record; no such case is made out.

Petition is without merit; it is dismissed.