Bhailal vs Sualal

Shiv Dayal, J.

This is an application for review from my judgment in Second Appeal No. 145 of 1963, arising from a suit instituted by the plaintiff-respondent in the year 1957 for possession and mesne profits in respect of agricultural lands (Civil Suit No. 49 of 1957). A decree was passed in favour of the plaintiff in second appeal. Two contentions were raised by the defendant-appellant. Both of them were decided against him. Aggrieved by that decision, the defendant has made this application for review. Shri Das, learned counsel for the petitioner, has confined it to one question only.

One of the defendant''s contentions which I rejected was that he was entitled to the benefit of the Bhopal State Sub-tenants (or Occupants) Protection Act (No. 1 of 1955). The reason for rejecting that contention was that the said Bhopal Act was repealed by the M. P. Land Revenue Code, 1959, before the trial Court decided the suit (on 7 May 1960). It was held that even if the defendant could not be dispossessed because of the provisions of the

Bhopal Sub-tenants Protection Act, that protection was lost no sooner than the '' M. P. Land Revenue Code, 1959, came into force. It is the petitioner''s contention that the provisions of section 261(d) of the M. P. Land Revenue Code were lost sight of.

Section 261, proviso (d) of the M. P. Land Revenue Code, 1959, reads thus:-

The enactments specified in Schedule II are hereby repealed to extent mentioned in 4th column thereof:

Provided that the repeal shall not affect-

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(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed.

Recently, there has appeared a decision of the Supreme Court in Ramnarayan Dhan Singh Vs. Anandilal Ratanlal Mahajan and Others, . There it has been held as follows:

By section 6 (2) of Act I of 1955, the appellant was entitled to be restored to ponesaion and by virtue of section 261, proviso (d) of the M. P. Land Revenue Code, 1959, a proceeding for restoration of possession of land, of which the appellant was deprived, had to be continued and decided as if the Madhya Pradesh Land Revenue Code had not been enacted. If an application u/s 6 (2) of Act I of 1955 was properly instituted, the appellant was entitled to prosecute it and to be restored to possession notwithstanding the repeat of Act I of 1955.

Resisting this petition, Shri Dabir, learned counsel for the plaintiff, urges that the judgment in the second appeal cannot be set aside, even if there is an incorrect exposition of the law, because that is no ground for review and that the defendant''s remedy lay by way of an appeal. Reliance is placed on Stiaram v. Kantram, 12 N L J 148 ; J. N. Sahani v. State A 1 R 1956 M B 174 (F. B.); Laxman Anandrao v. Ramchandra Wasudeo 1938 NLJ 48 : AIR 1938 Nag. 145 : I LR 1938 Nag. 151 ; Dev Krishna and Another Vs. Dhani Ram Saligram, : Kishen Chand Singh Vs. Mukan Sarup and Others, and Shrimati Garabini Kumarin v. Suraja Narain Singh I L R 3 Pat. 134.

In Laxman Anand Rao v. Ramchandra Wasudeo (supra), it has been laid down that an incorrect exposition of law is no ground for review unless it amounts to an error apparent on the face of the record. In my opinion, the present case is within the exception in that dictum. The error is apparent on the face of the record. The omission to consider section 261(d) of the M. P. Land Revenue Code, 1959, while denying the protection to the petitioner be- cause of the commencement of that Code, is apparent. As the suit has been instituted in 1957 and was pending on the date when the M. P. Land Revenue Code, 1959, came into force, this Court was bound to consider the impact of section 261(d) of the 1959 Code, and was bound to consider whether the suit had to be decided as if the M. P. Code had not been enacted. I have, there- fore, no doubt that this review must be granted. This is not because a decision of the Supreme Court has appeared subsequently, but because the application of section 261(d) to the present case escaped attention. The omission of the Court to advert to and apply the mind to the specific and material provisions of law is an error apparent on the face of the record, or at least analogous to it so as to attract the provisions contained in Order 47, rule 1, Civil Procedure Code. (See Dwarkadas v. Shrikishan 1962 MPLJ 64 = (M. C. C. No. 327 of 1959, decided on the 28th September, 1960) and Narayanan v. Raman AIR 1953 Tra Coc 306 (F. B.) )

The review is allowed. The judgment dated 31 March 1967 in Second Appeal No. 145 of 1963, is set aside. That appeal shall be set down for further hearing on 29 March 1968.