Shri Niawah Singh vs Shri Chandradeo Singh

Navaniti Prasad Singh, J.—Heard.

This is an application by the defendant-petitioner against order dated 29.07.2005 passed by the Additional Munsif I, Jamui in Eviction Case No. 12 of 1989. By the said order, the learned Munsif has recalled his earlier order dated 21.08.2003 by which in terms of Section 10 of CPC, the proceedings in the present eviction suit was stayed. It is submitted that this amounted to review of earlier order which power is circumscribed by the provisions of the Code of Civil Procedure.

The facts giving rise to the present case before this Court is that the father-in-law of the defendant-petitioner alleged that he had entered into negotiation and agreement for purchase of the suit premises from the vendor of the Plaintiff. The agreement having not been carried out, the defendant''s father-in-law had instituted a suit for specific performance as against the vendor of the plaintiff for the said premises. The suit had been dismissed and appeal from original decree in that case is still pending before this Court. The plaintiff having purchased the property had instituted the present suit for eviction of the defendant. It appears that the defendant filed an application u/s 10 praying that the eviction suit being a subsequent suit should be stayed in view of the earlier suit filed by his father-in-law for specific performance. The said application was to be taken up for consideration on 21.08.2003 in the present suit when an application was filed on behalf of the plaintiff that the hearing on the said petition be adjourned as his lawyer was not available on that day. The Court neither accepted the said application nor rejected it but proceeded to hearing the argument of the defendant and noticed that the said title appeal being pending and in that view of the matter purporting to act in the light of Section 10 of CPC, he stayed further proceedings in the eviction till the disposal of the title appeal. It is this order that has been subsequently recalled by the order impugned dated 29.07.2005.

On behalf of the defendant-petitioner, it is first submitted that in substance, the application of the plaintiff being in the nature of an application for review, the case did not fall within the parametres of Order 47 and review was not permissible. The remedy available to the plaintiff was to challenge the aforesaid order in revision.

In my considered view, the revision application must fail on two counts. Firstly, it is apparent from order dated 21.08.2003 when stay was granted, the stay order was passed in absence of the plaintiff and, accordingly, what was sought by the plaintiff now was "the procedural review" and not a substantive review. Procedural review has been held by the Apex Court in the case of Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, thus:

Furthermore, different considerations arise on review. The expression ''review'' is used in two distinct senses, namely, (1) the procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record.

Secondly, it is well settled that a suit for specific performance is not appertaining to a right in present time. The right in a party is only created once a decree for specific performance is in issue. It has been held by Division Bench of this Court in the case of Dr. N.P. Tripathi Vs. Smt. Dayamanti Devi and Another, that merely because a suit for specific performance is pending, proceedings in an eviction suit cannot be avoided. In view of the aforesaid judgment of Division Bench which is binding on this Court obviously the first order was wrong. Assuming that the second order as impugned is also wrong then this Court will not interfere in the matter as it is equally well established that the Court will set aside an illegal order because it will amount to reviving another illegal order.

I, accordingly, do not find any jurisdictional error persuading myself to interfere in the matter. This revision application is consequently dismissed.