Khatoon Bibi vs Ramnath and Others

Hon''ble Sudhir Agarwal, J.—Heard Sri R.S. Tripathi, learned counsel appearing for applicants and perused the record. This is a review application filed on behalf of the respondent for review of my judgment dated 05.12.2011.

The theme song of entire argument is that the impugned judgment passed by this Court is without any opportunity to applicants to file objections to the report dated 07.11.2008 submitted by Prescribed Authority pursuant to this Court''s order dated 24.09.2008 and, therefore, the judgment has been passed in violation of principle of natural justice.

From the record it transpires that this Court sought an updated spot situation report and, therefore, required the Prescribed Authority to inspect the site and submit report. Pursuant thereto the premises was visited in presence of counsels for the parties, namely, Sri Kaleem Ullah Khan for plaintiff and Sri Dinesh Kumar Shukla for defendants. He prepared report dated 07.11.2008 and submitted to this Court. Admittedly, at that time the original defendant, namely, Sri Ram Nath was alive and Sri R.S. Tripathi, Advocate was representing him as his counsel. He was granted time to file objections to the report but none was filed. It is stated that Sri Ram Nath died on 11.07.2009, i.e., after about 8 months, to the date, when report of Prescribed Authority was submitted but during this entire period no objection was filed by him.

After the death of Sri Ram Nath, substitution application was filed which was allowed by this Court on 24.02.2011 and legal heirs of Sri Ram Nath were substituted as respondents in this case. Notices were issued to them. It is admitted that after receiving notices, the applicants executed Vakalatnama in favour of same counsel, namely, Sri R.S. Tripathi. The Vakalatnama contained the date as 30.09.2011, therefore, atleast on this date they authorised Sri Tripathi, Advocate to represent them. Sri Tripathi, submitted that since the case was listed on 30.09.2011 but Court did not sit, therefore, Vakalatnama was not filed and it remained with him. Under the Rules once Vakalatnama is executed in a pending case, it ought to have been filed and could have been filed in the Registry and thereafter whenever the case is listed, it would show name(s) of learned counsels for the parties. For the reasons best known to applicants and their counsel, it was not done. It also remain a fact that Sri Tripathi, Advocate was well aware that a report was submitted in which original respondent was allowed time to file objection but none was filed. It is only when this case was taken up before this Court on 05.12.2011, an adjournment was sought with a request that he may be allowed time to file objection. Looking to the entire background of the case the Court declined to accept the request of adjournment. In these circumstances it cannot be said that no opportunity was afforded to the respondent to file objection to the report of Prescribed Authority.

Sri Tripathi also submitted that because of death of original landlord, Rule 17 of U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 would come into picture but that aspect has not been considered.

I am afraid this cannot be a ground for review since in the garb of a review application the fresh argument on merits of the case cannot be allowed.

Learned counsel for the applicant also submitted that this Court has inherent power to review the judgment and, therefore, his arguments should be entertained.

The submission is thoroughly misconceived. In Rajender Kumar and Others Vs. Rambhai and Others, , the Apex Court has observed about limited scope of judicial intervention at the time of review of the judgment and 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 judgement/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 Vs. 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 VS. Motilal (2009) 4 SCC 665.

However, one more fact need be mentioned at this stage. The record shows that a questionnaire was submitted to this Court to seek answer whether review application of the applicants is pending and that has been answered in positive. On a query made by this Court, it is submitted by Sri Tripathi that proceedings of court below have been deferred due to above pendency informed to the Court below. It is thus evident that pendency of review is also being enjoyed by applicants to delay proceedings in court below and, therefore, besides lacking any justification to review, I find that it has been filed for different reason and lacks bona fide.

In the facts and circumstances of the case, I do not find any justification to allow this application since, in my view, sufficient opportunity was available to respondent which was not availed.

The application is accordingly rejected with costs, which I quantify to Rs. 10000/.