Dr. M. Ismail Faruqui vs Shri Rajendra Singh

Sudhir Agarwal, J.—This application has been filed by Dr. M. Ismail Faruqui seeking review of judgment dated 30.09.2010 in O.O.S No. 1 of 1989 (hereinafter referred to as Suit-1). The application has been filed much beyond the period of limitation. It is accompanied by an application seeking condonation of delay. Another application seeks dispensation of filing of certified copy of judgment dated 30.09.2010, stating that it is very bulky judgment running into more than 8000 pages and would add a financial burden on the applicant in appending three copies of judgment which would be about 24000 pages. A Third application has been filed seeking time for filing affidavit in support of review application.

Review application alongwith accompanying applications was taken up on 10.1.2010 when on the request of applicant who had appeared in person, time was granted as prayed by him. We fixed 28th January 2011. The Bench could not be constituted on 28.01.2011 and the matter was posted for today.

We first come to the delay condonation application. The applicant states that he was at Hyderabad from 24.10.2010 to 31.11.2010 and, hence, could not file review application within time. Without going into much intricacies and looking to the nature of the matter, this Court has dealt with in the above suit connected with three others, in the interest of justice, we allow this application and condone delay in filing review application.

Further in peculiar facts and circumstances of the case, we also allow application seeking dispensation of filing of certified copy of judgment along with review application and also dispense with requirement of filing affidavit in support of the said application.

Now come third application whereby time for filing affidavit in support of review application has been sought. In para 2 thereof, applicant has requested for grant of a fortnight''s time. This application is dated 18.11.2010. It was taken up by Court for the first time on 10.12.2010. Much longer time was allowed by adjourning the matter to 28th January 2011, i.e. time of more than a month and half was available to the applicant to file affidavit in support of review petition. The application seeking time for filing affidavit thus has already rendered infructuous. No affidavit however has been filed. This itself is a sufficient reason to reject review application.

However, we had permitted applicant to address Court on merits so as to find out whether there is any substance whatsoever in review application. This Court adopted this procedure, though normally not, only to satisfy itself that no glaring or apparent error has crept in the judgment and there is no occasion for injustice to any of the parties. This approach, the Court has adopted, considering peculiar and sensitive nature of the matter.

There are only two grounds seeking review of our judgment in O.O.S No. 1 of 1989. It is said, in para-3 of the plaint, the original Plaintiff Gopal Singh Vishrad had stated that he was restrained from entering the premises in dispute (as demarcated at the bottom of the plaint) on 14.01.1950 which was the day of Makar Sankranti. However the plaint was verified and written on 13.01.1950. This was a glaring fraud played on the part of original Plaintiff mentioning cause of action which was impossible on the date of drafting and signing the plaint. The applicant contended that this itself was a reason sufficient for rejection of plaint. The glaring inconsistency having escaped attention of the Court, has resulted adverse consequences and, therefore, the judgment deserves to be recalled and reviewed.

The applicant in order to show his locus standi, has referred to the observation made in the judgment of one of us (Hon''ble S.U. Khan, J.) at page 279/280 which reads as under:

Muslims must also ponder that at present the entire world wants to know the exact teaching of Islam in respect of relationship of Muslims with others. Hostility - peace - friendship - tolerance -opportunity to impress others with the Message -opportunity to strike wherever and whenever possible - or what? In this regard Muslims in India enjoy a unique position. They have been rulers here, they have been ruled and now they are sharers in power (of course junior partners). They are not in majority but they are also not negligible minority (Maximum member of Muslims in any country after Indonesia is in India.) In other countries either the Muslims are in huge majority which makes them indifferent to the problem in question or in negligible minority which makes them redundant. Indian Muslims have also inherited huge legacy of religious learning and knowledge. They are therefore in the best position to tell the world the correct position. Let them start with their role in the resolution of the conflict at hand.

The applicant contended that it is the fundamental duty of every citizen of this country under Article 51A of the Constitution of India to develop a scientific temper, humanism, the spirit of inquiry and reform. The applicant says that he is a citizen of this country and is very well interested in resolution of the conflict as observed by this Court. In furtherance of his spirit of inquiry and reform for humanism, he feels that the judgment in question in Suit-1 deserves to be recalled and reviewed otherwise it would cause serious prejudice to one section of the people of this country.

In order to maintain review application, and to show his locus standi the applicant has relied on Apex Court''s decision in Gopabandhu Biswal Vs. Krishna Chandra Mohanty and Others, . He submits that in any case his review application may be entertained u/s 151 CPC if not maintainable within the scope of review under Order 47 Rule 1 C.P.C.. For this purpose, he placed reliance on M.S. Jayaraj Vs. Commissioner of Excise, Kerala and Others, United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, He further says that kind of fraud the original Plaintiff in Suit-1 has played, vitiates the entire proceedings. Fraud and justice never dwell together. No judgment of a Court can be allowed to stand if obtained by fraud. He also submits that Court is never powerless to recall its own order if the same is so wangled through fraud or misrepresentation.

We have heard the applicant in person. Learned Counsels appearing for various parties in the suit stated that they have not been supplied copy of review application and, therefore, are not in a position to make their submissions in much detail but contend that no review application is maintainable since the applicant''s attempt to get impleaded in the Original Suit had failed repeatedly when his impleadment applications were rejected by this Court. A review application at the instance of applicant is thus not maintainable. Even otherwise, they submitted in unison that there is no reason for review of judgment at this stage since parties are approaching and in fact some had already approached the Apex Court by filing appeal.

We are informed that some of them have already filed appeals before the Apex Court which are likely to be taken up for admission in very near future.

Before coming to various other aspects of the matter, we may point out that the judgment dated 30.09.2010 is not a Single order delivered unanimously but three orders constitute the judgment. The matter has been decided on the basis of majority opinion, or as the case may be on some aspects, views of all of us are same though reasons may differ. Nothing has been pointed out in present application as to which part of the order(s) the applicant wants to be reviewed.

We however proceed by taking as if the applicant wants the entire judgment to be recalled/reviewed.

It is not disputed by applicant that earlier he moved applications before this Court seeking impleadment in original suits transferred to this Court vide order dated 10.07.1989. His first application was filed on 14.08.1989 whereby he prayed for allowing intervention in the transferred suits but was rejected by Court on 14.08.1989 itself.

Thereafter, he moved other applications seeking his impleadment namely Application No. 26(O) of 1996 in O.O.S. No. 4 of 1989 filed on 26.08.1996; Application No. 34(O) of 1996 in O.O.S. No. 5 of 1989 filed on 07.10.1996; and Application No. 36(O) of 1996 filed in O.O.S. No. 3 of 1989. These applications were rejected vide order dated 27.11.1996. The orders attained finality since the applicant did not assail these orders by taking matter in appeal or by availing such remedy as available to him under law. Once applicant''s attempt to become a party in the Original Suits had failed, in our view applicant is not competent to move review application after the suit(s) itself is/are decided finally. Such a review application at the instance of a non-party like the applicant, in our view, is not maintainable.

The judgments cited by applicant, we find, have no application hereat. United India Insurance Co. Ltd. (supra) was a case where two awards were given by Motor Accident Claims Tribunal for a bulk sum by playing fraud. Father and son both filed two separate claims in respect to the same accident claiming substantial amount as compensation. Insurance Company was impleaded as party in both the claims. Two awards were given on the same date i.e. 15th January, 1998 in favour of father and son both. The award attained finality since neither the owner of the Ambassador car with whom the accident took place nor the Insurance Company filed appeal. Later on, it came to the notice of Insurance Company that the aforesaid father and son had suffered injuries elsewhere on the date they claimed to have met accident and sought compensation in the aforesaid claim petition. It became evident that the claim petition for compensation was totally fraudulent. After making necessary investigation into the matter, Insurance Company moved application under Sections 151, 152 and 153 CPC before the Tribunal seeking recall of award. The applications were resisted by claimants solely on the ground that Tribunal had no power of review except of correcting clerical errors. Accepting this objection, the applications were rejected by Tribunal. The Insurance Company came to this Court by filing writ petition seeking quashing of awards but a learned Single Judge of this Court dismissed writ petition observing, since there is no power of review in the Statute, order of Tribunal is not erroneous. The Court also observed, however, the question of fraud, played upon Insurance Company is a question of fact, for which writ jurisdiction is not proper forum and therefore, the Insurance Company may avail such remedy, as available. It is in these circumstances, where fraud was virtually proved, the matter went in appeal. The Apex Court observed in paras 11, 12, 15 and 16 of the judgment as under:

Thus the Tribunal refused to open the door to the Appellant Company as the High Court declined to exercise its writ jurisdiction which is almost plenary for which no statutory constrictions could possibly be imposed. If a party complaining of fraud having been practised on him as well as on the court by another party resulting in a decree, cannot avail himself of the remedy of review or even the writ jurisdiction of the High Court, what else is the alternative remedy for him? Is he to surrender to the product of the fraud and thereby became a conduit to enrich the impostor unjustly? Learned Single Judge who indicated some other alternative remedy did not unfortunately spell out what is the other remedy which the Appellant Insurance Company could pursue.

No one can possibly fault the Insurance Company for persistently pursuing the matter up to this Court because they are dealing with public money. If they have discovered that such public fund, in a whopping measure, would be knocked off fraudulently through a fake claim, there is full justification for the Insurance Company in approaching the Tribunal itself first. At any rate the High Court ought not to have refused to consider their grievances. What is the legal remedy when a party to a judgment or order of court later discovered that it was obtained by fraud?

It is unrealistic to expect the Appellant Company to resist a claim at the first instance on the basis of the fraud because the Appellant Company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the Company to file a statutory appeal against the award. Not only because of the bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.

Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.

We do not find any semblance of facts and reasons on which the above decision rendered by the Apex Court would apply to the case in hand.

The case of fraud as it was in United India Insurance Co. Ltd. (supra) is not in the case in hand. Whether the dates were fraudulently mentioned or there is in deliberate typing mistake makes a sea change in the consequences. Merely because the applicant has chosen to use the word "fraud" the allegation made by him would not constitute fraud. The ingredients of fraud are totally different and have not shown satisfied in the case in hand.

Similarly, in Ramji Lal v. Giani (supra) it was held by a Single Judge of Lahore High Court, Wilberforce, J, that Section 152 CPC provides for correction of merely arithmetical or clerical errors which are patent on the face of the judgment or of the decree. But where the entire basis of calculation and system thereof is challenged, it would not be a case of mere clerical or arithmetical mistake. Hence the application u/s 152 would not be maintainable but the remedy lie elsewhere by approaching the Court under Order XLVII CPC This judgment also, in our view, has no application in this case.

However, we have ourselves gone through the plaint to find out whether there is any substance in the said ground of review as argued by applicant.

The original plaint which was filed in Civil Court on 16.01.1950 by Gopal Singh Visharad is handwritten. The entire plaint has been written by pen and in black ink. In para 3 it has categorically been stated that Plaintiff was obstructed in offering worship when he visited the premises in dispute on 14.01.1950. At the bottom of the plaint there is a verification and signature in blue ink at two places, and, underneath the two, the date "13.1.50" is mentioned which is also in blue ink. 14th January 1950 was Saturday. 15th was Sunday and the suit was filed in Court on Monday, i.e. the 16th. It appears that verification and signature on the plaint which is in blue ink was not made at the same time when the plaint was drafted. It might have been done after some time, the same day or the next day. It is quite probable that at the time when the said verification and signature was made, the person concerned, under a mistaken belief, mentioned 13.1.50 though that might have been either 14th or 15th . This aspect could have been explained by Plaintiff or his counsel had it been raised by Defendants earlier or any issue would have been framed on this point. It appears that parties took it a simple in deliberate mistake, having no bearing on the substance of the matter and therefore, no issue was raised on this aspect. That being so, we find no reason to create a new issue which could have been decided only after recording evidence and giving opportunity to the parties concerned.

The applicant admits that his allegation that a fraud has been played by the original Plaintiff is basically a question of fact. That being so, unless there is pleading, and issue is framed, there could be no occasion for the parties to lead evidence. In the absence thereof, this aspect at this stage, particularly when the suit itself has been finally decided, cannot be allowed to be raised and considered.

Moreover, the applicant could not explain any benefit which could have been derived by original Plaintiff mentioning a wrong date in the plaint, particularly when the suit, as a matter of fact was presented in the Court, admittedly, on 16.1.1950. We, therefore, find no substance in the ground raised by applicant for review of the judgment.

Even otherwise, the scope of review of a judgment is very limited. Order 47 Rule 1 CPC says that if the applicant, from discovery of new and important matter or the evidence, which, after 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, may apply for the same.

In the case in hand, the applicant admits that in earlier application, which he filed seeking his impleadment, this fact of inconsistency in the date in para 3 of the plaint and in verification clause, was pointed out by him but was not found of any substance by the Court. His application for impleadment was rejected. Therefore, the discrepancy being pointed out by the applicant now, was already known to him for last more than one and half a decade. It thus cannot be said that there is discovery of any new or important matter or evidence or that the order suffers from an error apparent on the face of record which if permitted to continue would lead to failure of justice.

In Rajender Kumar and Others Vs. Rambhai and Others, the Apex Court observing about limited scope of judicial intervention at the time of review of the judgment, said:

The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the Judgment/order cannot be disturbed.

Review is not an appeal in disguise. Rehearing of the matter is impermissible in the garb of review. It is an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. In Lily Thomas v. Union of India AIR 2000 SC 1650, the Court said that power of review can be exercised for correction of a mistake and not to substitute a new. Such powers can be exercised within limits of the statute dealing with the exercise of power. The aforesaid view is reiterated in Inderchand Jain v. Motilal (2009) 4 SCC 665.

The grounds of review taken in this application do not fall in any of the contingencies provided in Order XLVII Rule 1 justifying review of judgment dated 30th September, 2010. For the reasons we have already discussed above it is also evident that Section 151 CPC is also not attracted.

The discussion above leads us to only conclusion that application is thoroughly misconceived, not maintainable and even otherwise is devoid of merit, hence deserves to be rejected.

Rejected.

No costs.