Sadiq Husain & Ors. vs Addl.District Judge, Dehradun & Anr.

Heard Sri Arvind Vashist, counsel for the review applicants and Sri B. P. Nautiyal, counsel for the petitioners.

Present application has been preferred by the respondent No. 2 review applicant for reviewing the judgment and order dated 22nd February, 2007 passed by this Court, whereby the order dated 1052000 passed by the respondents No. 1 Additional district Judge, Dehradun has been set aside and respondent No. 2 has been directed to be evicted from the premises in dispute.

According to the review applicant, she had engaged Sri B. D. Kandpal, Advocate in her case, but he could not communicate the date fixed in the case, as such instructions could not be given to him. As a result of which, true facts could not be brought to the knowledge of the Court.

Order sheet shows that the case was argued by the counsel for both the sides on 2882006 and the judgment was delivered on 2222007. During this period or before 2882006 neither the counteraffidavit was filed nor any request for time for filing the same was made.

The review applicant has alleged that the applicant is an infirm lady of 86 years and her son Vinesh Kumar is a handicapped person. Her daughter Anjali Bhaseen is working in Canara Bank.

Present review application has been filed on the following grounds :

"4. That Sri B. D. Kandpal, Advocate did not inform her about listing of the matter and he was contacted time and again but the information conveyed to the applicant was that the record of the petition is not traceable.

That the applicant i$ aged and infirm lady. She is aged about 86 years and is ailing. Her son Vinesh Kumar Bhaseen is handicapped and a daughter Anjali Bhaseen is serving in Canara Bank. Due to her old age and illness the applicant was not in a position to come Nainital very often and therefore telephonic continuity with Sri B.D. Kandpal advocate was maintained.

That the applicant was not aware that 2222007 or any other date was fixed in the matter and therefore, proper instructions could not be issued to Sri B. D. Kandpal Advocate as a result of which true facts could not be brought to the knowledge of this Hon''ble High Court when the writ petition aforementioned as heard.

That there were various new (the events subsequent to the appellate order) and important matter which could not be produced at the time when the impugned judgment was passed. There is a mistake apparent on the face of record and it is therefore expedient in the interest of justice that this review application be allowed.

That under the aforesaid circumstances the order dated 16121997 was challenged by the applicant by filing RCA No. 152 of 1997. During pendency of the appeal aforementioned the applicant adduced additional evidence which established that the landlord was very conveniently carrying on his timber business from major portion of the property of which the disputed property is small fragment. The landlord filed his rebuttal evidence but failed to refute the aforesaid evidence and after in depth analysis of evidence adduced by the parties the prescribed authority recorded a finding that need of the landlord was not bona fide. The finding about comparative hardships were also recorded in tenant''s favour and thus, the order dated 15121997 passed by prescribed authority was set aside.

That during pendency of this writ petition Sri Vinesh Kumar Bhaseen the applicant''s son was discharged from his services vide order dated 17112006."

After filing the review application, counsel for the review applicant has prayed for filing of the reply to the pleadings of the petitioner and prayer was granted. The review applicant has filed the counteraffidavit.

I have perused the counteraffidavit and considered the submissions of the counsel for both the parties.

Main thrust in the counteraffidavit is to the following effect:

"2. That the writ petition aforementioned has been filed by the petitioners seeking a writ of certiorari against the order dated 1052000 passed by the Additional District Judge, Dehradun in R.C.A. No. 152 of 1997. The aforesaid writ petition was decided by this Hon''ble Court vide judgment and order dated 2222007. In the writ petition aforementioned the answering respondent filed review application No. 1503 of 2007 along with the application for condonation of delay. The review application was heard by this Hon''ble Court on 23112007 and this Hon''ble Court permitted the answering respondent to file counteraffidavit to the writ petition.

That the released application was filed inter alia with assertions that the deponent is a tenant of a tin shed measuring 52 ft. 6 inches x 21 ft. 8 inches without any independent approach and on three sides of it landlord has his open land and machine shed. The application further shows that in the remaining portion of property No. 26 M/s. Mohammad Safi and sons belonging to fatherinlaw of the petitioner is going on where the petitioner''s fatherinlaw is doing business of timber and saw machines.

That it will not out of place to mention at this stage that the answering respondent has a son and daughter who are residing with her. During the pendency of release application on 2651997 the son of answering respondent namely Vinesh Kumar Bhasin met to a serious road accident and sustain grievous injuries due to which he has been rendered handicapped.

During the pendency of appeal the answering respondent filed an application dated 20101999 duly supported with her affidavit and various other documents through application No. 19C1.

That as mentioned in foregoing paragraphs Vinesh Kumar Bhasin son of the answering respondent was handicapped during the pendency of application. During the pendency of writ petition son of answering respondent (deponent of the present counteraffidavit) terminated from his service due to the reason of being handicapped and is not getting any pension. The answering respondents is 84 years old ailing infirm lady and disputed accommodation is only source of their livelihood."

This Court in its judgment and order dated 2222007 on the basis of the evidence on record has held that the petitioner No. 1 was engaged with Sri Anand Bhushan for the time being, but after 29th July, 1993, petitioner No. 1 has no concern with the said business. Further petitioner No. 1 also to support his family and his sons have also to be engaged and as such the need of the petitioner is bona fide. The other portion is in the tenancy of M/s. Mohd. Shafi & Sons belonging to his fatherinlaw. During this period the respondent did not make any attempt to seek an alternative accommodation and failed to show that she has made any effort to search out any accommodation. In this view of the case, the comparative hardship lies in favour of the petitionerlandlord. The petitioners have been deprived since 1994 and therefore, there was no reason to reject the release application. Relevant paragraphs 2, 5, 6, 7 and 8 of the application under Section 21 (1)(a) are quoted below :

"2. That in the remaining portion of the property. No. 23A Lakhibagh, Dehradun M/s. Mohd. Shafi & sons belonging to fatherinlaw of the petitioner No. 1 are the tenants and are doing business of timber and Saw Machine. The said business is a running one and it is not feasible to get it vacated nor the petitioners want it at present.

That the petitioner No. 1 was doing the work of timber business for about last six years with Sri Anand Bhushan, but now from 29th July, 1993 petitioner No. 1 had to sever his connection with the said business on account of mutual differences.

That the petitioner No. 1 has the following members in his family to support and these persons are living with him :

(1) Smt. Musharf Banu (wife),

(2) Sri Parvez Hussain aged about 23 years (son),

(3) Sri Liyakat Hussain, aged about 14 years (son),

(4) Sri Shaukat Hussain, aged about 14 years (son), and;

(5) Muqarram Banu, aged about 10 years (daughter).

That petitioner No. 1 has no source of income for want of employment and he wants to start his own business in the aforesaid shed. His wife petitioner No. 2 is a Pardanashin house lady.

That the petitioner No. 1 has no source of income except pension amounting to know Rs. 9507 per month which is not sufficient even for running the kitchen."

So far as paragraphs 2, 5, 6 and 7 of the aforesaid application are concerned, the same have been replied by way of AffidavitAnnexure No. 1 to the counteraffidavit, the same is quoted below :

(Vernacular matter omitted....Ed.)

Further in the replication, the petitioner in paragraph 7 has stated as under :

"7. Para 7 of the written statement is wrong and denied and para 5 of the petition is reiterated. It is reiterated that the petitioner No. 1 was doing the work of timber business with Shri Anand Bhushan but from 2971993 he had to sever his connection with the said business on account of mutual differences with him. The petitioner No. 1 is without any businesswork and is unemployed since then.

Para 13 of the written statement is not admitted and para 11 of the petition is reiterated. It is denied that the petitioner No. 1 has alternative accommodation had (sic) has abutting land to the property in dispute available to him and the allegations are wrong and denied. As already submitted that the entire remaining portion of property No. 26A, Lakhi Bagh, Dehradun, is in the tenancy and possession and use of M/s. Mohd. Shafi and Sons since very long period and they are doing business of timber and saw machine. No part of the same is vacant and is not available to the petitioners for doing any business."

In the affidavit filed by Shri Sadiq Hussain Paper No. 21 Ka/1, it has been stated as under:

"5. That her son who is employed in the Bank is interested in the present litigation and wants the premium for vacating the property and as such, he is interested in this litigation and not the appellant.

That para 3 of the said affidavit is not admitted as alleged. The Ara machine installed in the Plot No. 26/1, Lakhi Bagh, Dehradun belongs to the respondent and has been given to Shri Mohammad Shafi, Sole Proprietor, M/s. Shafi and Sons 26/1, Lakhi Bagh, Dehradun for running his business. Since last over 15 years the respondent is not doing any business with the said machine.

That in reply to para 4 of the said affidavit, it is submitted that the licence for saw mill is in the name of the respondent over 15 years, but the respondent is not doing any business in the said plot.

That in reply to para 6 of the said affidavit, it is submitted that a visiting cards got printed by the respondent in the year 1993, when he had severed his connection from Shri Anand Bhushan with whom he was doing the timber business till 1993. The respondent then had arranged with his fatherinlaw, Mohammad Shafi to work with him but the said arrangement could not materialize and the respondent could not start the work with his fatherinlaw and in that connection the visiting cards were printed.

That the fatherinlaw of the respondent is doing his own business in plot No. 26/1, Lakhi Bag, Dehradun, in the name of Mohammad Shafi and sons and has obtained licence from Krishi Utpadan Mandi Samiti and is paying the requisite fee for the licence, of running the business, of Ara machine etc. As per receipts issued by the mandi Samiti from time to time, the papers No. 3, 4, 5, 6, 7, 8 and 9 are the original receipts issued by the Krishi Utpadan Mandi Samiti, Dehradun, in respect of plot No. 26/1, Lakhi Bagh, Dehradun, issued to M/s. Mohammad Shafi and Sons."

As will appear from the aforesaid reply that the respondenttenant could not demonstrate that the petitioner No. 1 has got any independent business for his family members. Nowhere it has been stated that either the petitioner No. 1 or his sons have any concern with the business of Sri Anand Bhushan or M/s. Mohd. Shafi.

The Apex Court in G. C. Kapoor v. Nand Kumar Bhasin 2001 (2) Allahabad Rent Cases 603 : (AIR 2002 SC 200) has relied upon the judgment of Datta Laxman as well as Raghunath Pale and has come to the conclusion as under :

"It is settled position of law that bona fide requirement means the requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde, 1999 (4) SCC 1 : 1999 SCFBRC 292 : AIR 1999 SC 2226 this Court while considering the bona fide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to prove it but there is no warrant for presuming that his need is not bona fide. It was also held that while deciding this question, Court would look into the broad aspects and if the Court feels any doubt about bona fide requirement, it is for the landlord to clear such doubt."

Counsel for the review applicant has submitted that the construction and improvement has been done by the tenant over the land in dispute. The tenancy is admitted to the respondent No. 2. Under Section 108 of the Transfer of Property Act, any accession is made to the property shall be deemed to be comprised in the leased premises.

In M/s. Kedar Nath Baij Nath v. Shri Ram Chandaraji, Shri Jankiji, Shri Lakshmanji, Virjman Mandir, 1991 (1) ARC 420, same controversy arose, where the land was let out. It has been observed as under :

"13..........Indeed, the plaintiffs have specifically claimed the relief of ejectment of the defendants from the constructions raised by the defendants over the disputed land. The further fact that the two shops which were in existence at the time of the letting out of the premises are still there is also not disputed. With these buildings standing within the leased premises can it be seriously doubted that the suit is by a lessor for the eviction of the lessee from a building ? To my mind, the answer cannot but be in the negative.

Clause (d) of Section 108(B) of the Transfer of Property Act also leads us to the same conclusion. It provides :

"(d) If during the continuance of the lease any accession is made to the property such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease."

It can scarcely be doubted that the factory building constructed by the applicants over the disputed land is and accession to the leased property and consequently the same shall be deemed to be comprised in the lease. That is to say, the building constructed over the leased land by the applicants became part of the leased property by operation of law quite apart from the express terms of the lease under which the constructions made by the lessees over the land in question where to vest in the lessor at the end of the period of tenancy."

In the counteraffidavit filed by the review applicant no new facts have been mentioned. It has been stated that during the pendency of the writ petition, the son of the reviewapplicant was terminated from his service due to the reason of being handicapped and is not getting any pension.

So far as, the merit of the review petition is concerned, the review petition can be filed only for consideration of important matters or evidence which, by mistake or error on the face of the record could not be considered when the order was passed. A review petition cannot be filed for rehearing of the entire matter by changing the counsel as well as observations on the new facts which were not available before the Court below.

The Hon''ble Apex Court in the case M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1978) 4 SCC 36: AIR 1978 SC 1591 has observed as under :

"It is wellsettled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so : Sajjan Singh v. State of Rajasthan, AIR 1966 SC 845. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment G. L. Gupta v. D. N. Mehta, AIR 1971 SC 2162, the Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O. N. Mohindroo v. Distt. Judge, Delhi, AIR 1971 SC 107. Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47, Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40, Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility". Sow Chandra Kante v. Sheikh Habib), (1975) 3 SCR 935 : AIR 1975 SC 1187."

In the case of Parison Devo v. Sumitri Devi, (1997) 8 SCC 715 Hon''ble Supreme Court has held that while exercising power under Order 47, Rule 1 of the Code of Civil Procedure it is not permissible for erroneous decision to be reheard and corrected and the power of review cannot be exercised to be an appeal in disguise. Hon''ble Supreme Court has observed as under :

"It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1, CPC. In Thungabhadra Industries Ltd. v. Govt. of A. P., AIR 1964 SC 1372 (SCR at p. 186) this Court opined :

"What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an ''error apparent on the face of the record). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an ''error apparent on the face of the record'', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by ''error apparent''. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."

Under Order 47, Rule 1, CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not selfevident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47, Rule 1, CPC. In exercise of the jurisdiction under Order 47, Rule 1, CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise."

In the case of Union of India v. Paul Maicram, AIR 2003 SC 4622 the proposition of law dismissed as above has been consistently upheld by the Apex Court.

"As noted supra, for the first time in the review application it was disclosed that the representation was made to the President of India and no representation was made to the State of Tamil Nadu or the Union of India who were arrayed in the writ petition as parties. This appears to be a deliberate attempt to create confusion and reap an undeserved benefit by adopting such dubious device. The High Court also transgressed its jurisdiction in entertaining the review petition with an entirely new substratum of issues. Considering the limited scope for review, the High Court ought not to have taken into account factual aspect which were not disclosed or were concealed in the writ petition. While dealing with a habeas corpus application undue importance is not to be attached to technicalities, but at the same time where the Court is satisfied that an attempt has been made to deflect the course of justice by letting loose red herrings the Court has to take serious note of unclean approach. Whenever a representation is made to the President and the Governor instead of the indicated authorities, it is but natural that the representation should indicate as to why the representation was made to the President or the Governor and not the indicated authorities. It should also be clearly indicated as to whom the representation has been made specifically, and not in the manner done in the case at hand. The President as well as the Governor, no doubt are constitutional Head of the respective Governments but the daytoday administration at respective levels is carried on by the Head of the Departments/Ministries concerned and the designated officers who alone are ultimately responsible and accountable for the action taken or to be taken in a given case. If really the citizen concerned genuinely and honestly felt or was interested in getting an expeditious consideration or disposal of his grievance, he would and should honestly approach the real authorities concerned and would not adopt any dubious devices with the sole aim of deliberately creating a situation for delay in consideration and cry for relief on his own manipulated ground, by directing his representation to an authority which is not directly immediately concerned with such consideration."

Hon''ble Supreme Court in the case Parision Devi v. Sumiti Devi (1997) 8 SCC 715 has observed that rehearing the matter for detecting an error in the earlier decision and then correcting the same do not fall within the ambit of review jurisdiction. The Apex Court has observed as under :

"It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47, Rule 1, CPC. In Thungabhadra Industries Ltd. v. Govt. of A. P., AIR 1964 SC 1372 this Court opined :

"What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an error apparent on the face of record. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an ''error apparent on the face of the record'', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision which could be characterized as vitiated by ''error apparent''. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."

Further, it has been stated that the case is pending from last 13 years and the sons of the landlords are unemployed.

It has been observed by the Apex Court in Gaya Prasad v. Pradeep Srivastava, AIR 2001 SC 803 as under :

"13. In our opinion, the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. A threeJudge Bench of this Court in Pasupuleti Venkateswarlu v. Motor and General Traders (1975) 1 SCC 770: AIR 1975 SC 1409 which pointed to the need for remoulding the relief on the strength of subsequent events affecting the cause of action in the field of rent control litigation, forewarned that cognizance of such subsequent events should be taken very cautiously. This is what learned Judges of the Bench said then (SCC pp. 77273, para 4) :

"We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and development subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed."

The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subjectmatter of the list. If the cause of action is to be submerged in such subsequent events on account of the malady of the system. It shatters the confidence of the litigant, despite the impairment already caused.

We wish to add, as an epilogue, that this case can provide a catalytic agent for the High Courts to evolve some concrete scheme for winching to the fore similar long pending matters, lying in torpidity at the bottom of the crammed list of pending cases in the High Court after passing the initial orders, keeping the operative part of decrees in abeyance. It is worth considering whether a cell can be set up in each of such High Courts where the piles of backlog are a stirring problem, to pick out such cases to be brought to the notice of the Chief Justice of the High Court concerned so that he could take appropriate steps in the matter."

Relying upon Gaya Prasad v. Pradeep Srivastava, AIR 2001 SC 803 in G. C. Kapoor v. Nand Kumar Bhasin 2001 (2) ARC 603 : AIR 2002 SC 200, Apex Court has observed as under :

"10. In Raghunath G. Panhale (D) by LRs. v. Chaganlal Sundarjji and Co., 1999 (8) SCC 1 : 1999 SCFBRC 440 : AIR 1999 SC 3864, this Court inter alia held that it was not necessary for landlord to prove that he had money to invest in the new business contemplated nor that he had experience of it. It was a case for eviction on the ground of bona fide requirement of the landlord for nonresidential purpose, as he wanted to start a grocery business in the suit premises to improve his livelihood.

Another reasoning of the Courts below is that as Rohit did not start the business between the year 1992 and 1997 by taking any property on rent, it could not be said that the appellant needed the suit premises to run the business. There is a categorical averment by the appellant that the business was to be started in the suit premises and the appellant would not be able to take any other premises on rent. Not starting the business in a rented premises during the above mentioned period, cannot be a ground to deny decree for eviction of the suit premises. This Court in Gaya Prasad v. Pradeep Srivastava, 2001 (2) SCC 604 : 2001 SCFBRC 128 : AIR 2001 SC 803 relying on early decisions of this Court held that the crucial date for deciding as to bona fide of requirement of the premises in question for starting a clinic by the son of the landlord. The litigation continued for 23 years and during that period the son of the landlord joined provincial medical service and was posted at different places. The Court refused to take notice of the subsequent event holding that crucial date was the date of filing of the eviction petition.

The Courts below competently overlooked clause (d) of subrule (2) of Rule 16 of the rules while deciding the eviction petition. From the rule extracted earlier, the Court has to ascertain whether the son of the landlord has completed technical education and is not employed in the Government and wants to engage in selfemployment. All the criteria laid down in the said clause have been proved and therefore, appellant is entitled to get the decree for eviction."

Thus, the review petition, is liable to be rejected on the grounds that the power of review cannot be exercised as an alternative mode of appeal or to permit the parties to provide another opportunity of hearing on merit, more so when the grounds taken by the review petitioner in the review application have already been discussed and considered on merit, this Court lacks jurisdiction to interfere with the impugned judgment and order and cannot act as a Court of appeal in the review application.

The review application is barred by 238 days. Although the applicant has moved application for condonation of delay in filing the review application but the grounds taken by him are not cogent and convincing. Vakalatnama was filed on behalf of the respondent No. 2 by Sri B. D. Kandpal, Advocate on 632006 and thereafter on several dates the case was adjourned. Arguments were heard on 2882006 and thereafter judgment was delivered on 2222007. Thus there were ample opportunities for the respondent No. 2 to file counteraffidavit and give instructions to his counsel. On the prayer of the respondent No. 2 time was given to her to vacate the premises by 31st May, 2007 provided undertaking is given by the stipulated time but no undertaking was furnished and present review application has been filed to prolong the eviction and to defeat the purpose of law by engaging a defferent lawyer, which is not permitted under the law.

Thus, in view of the above, I find no merit in the review application. The review application is, therefore, dismissed with costs.