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Judgment
This is an application seeking review of the judgment dated 04.10.2005 dismissing the first appeal filed by review applicants.
Facts are that against the judgment and decree dated 21.09.2005 passed by Civil Judge, Senior division, Allahabad dismissing the Original Suit No. 1040 of 2004 under Order VII Rule 11 of the CPC on the ground that the plaint failed to disclose any cause of action, the first appeal was filed, which was dismissed by order dated 04.10.2005. Suit was filed for cancellation of the sale deed dated 19.11.2004 of the house in question executed by defendant-respondent No. 2 in favour of defendant-respondent No. 1 on the ground that he being the tenant in the said premises, had a right of pre-emption. Further relief was claimed to direct respondent No. 2 to execute sale deed of the house in dispute in favour of plaintiff-appellants after accepting Rs. 5.50 lacs as sale consideration.
After hearing the learned Counsel for the appellants, finding that right of pre-emption could be exercised only either by a co-sharer or by a person on account of vicinage and the appellants being only a tenant could not exercise the right of pre-emption and there was no evidence to establish that the right of pre-emption by way of custom was prevailing in the city of Allahabad, this Court dismissed the appeal.
Review has been sought mainly on the ground that this Court while deciding the first appeal only concentrated on the point of pre-emption without considering that apart from pre-emption, the plaintiff-appellants have also set up a case based on specific performance of oral agreement of the sale of the house in dispute with the defendant-respondent No. 1.
It has been urged by Shri V.K. Singh appearing for the applicants that since pleadings were made in the plaint for specific performance of oral agreement between the parties, as such, the court below wrongly dismissed the suit under Order VII Rule 11 of the C.P.C. holding that there was no cause of action and this Court while dismissing the appeal, has illegally failed to take into consideration this aspect of the matter.
We have considered the arguments advanced on behalf of the learned Counsel for the parties.
A bare perusal of the memo of appeal goes to show that no such ground was taken in the appeal. Even in the affidavit filed in support of the stay application, there was no averment with respect to any oral agreement between the parties or claim for specific performance of the said agreement. Even the copy of the plaint of the suit was not filed along with the affidavit, instead, copy of another Suit No. 1015 filed by the plaintiffs seeking permanent injunction was appended. A perusal of the judgment under review further goes to show that the point was not even urged during the course of argument. Learned Counsel for the review applicants conceded before us that this ground was not taken in the appeal nor the plaint was brought on record, and it has been brought for the first time on record by means of a supplementary affidavit in the review proceedings. In the absence of any specific grounds having been taken in the memo of appeal or urged before this Court during oral argument, which are now being raised in the review, there was hardly any occasion for the Court to have considered the same while deciding the appeal.
Order XLVII Rule 1 C.P.C. providing for review reads as under.
Application for review of judgment.- (1) Any person considering himself aggrieved,-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence which, after the 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 of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.
It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order XLVII Rule 1 C.P.C. In a given case where it is open to the applicant to raise a point which he could and ought to have raised at the former hearing and having failed to do so, cannot be permitted to seek review of the judgment on the said grounds. A bare reading of the provisions of Order XLVII Rule 1 C.P.C. make it clear that review petition can be filed, if from the discovery of new materials, 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 record, or for any other sufficient reason. Here is not the case where review petition has been filed on discovery of new and important matter or evidence which after exercise of due diligence was not within the knowledge of the party or could not be produced at the time when the judgment was given.
On the contrary, the case in hand is a case where the applicants want review of the order on some grounds and facts which they failed to mention either in the memo of appeal or even during the course of argument. The averments made in the plaint of the suit, on the basis of which the review of the judgment is being sought, as already stated above, were not a part of the record nor the point urged during hearing of the review that a decree for specific performance on the basis of oral agreement was also being claimed, was ever taken in the grounds of appeal or during the course of arguments in appeal. Effort by placing something new on record and some new averments in the review application cannot constitute a ground for taking a different view than taken at the earlier stage nor can the same be the scope of review petition, otherwise there will never be any end of the matter, as the losing party will always try to get the review application filed, may be by some more eminent Advocate, for the purpose of vehement re-argument in the matter, in the hope of getting the earlier judgment reviewed in his favour. This cannot be the spirit of the provisions contained under Order XLVII Rule 1 C.P.C. providing for review of a judgment.
Hon''ble Apex Court in the case of Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, while considering the scope of review has observed as under.
It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule I C.P.C.
In view of the aforesaid facts and discussions, the review being sought by the applicants on the grounds, which were not originally taken or urged during the course of hearing of the appeal, is not permissible and the review application being totally misconceived, stands rejected.