Sugra vs Parvash Ali

Umesh Chandra Dhyani, J.—The suits filed by the plaintiff Parvash Ali were dismissed, vide common judgment and order dated 02.08.2006 passed by 1st Addl. Civil Judge (J.D.), Haridwar. Aggrieved against the same, first appeals were preferred before the District Judge, which appeals were allowed by the lower appellate court, vide order dated 19.09.2006. Aggrieved against the same, second appeals were preferred by the defendant-appellant, which were decided by this Court, vide order dated 19.05.2014. The relevant portion of the order dated 19.05.2014 sought to be reviewed by the review-applicant is reproduced herein below for convenience:

... The fact remains that when in the written statement putting up of the thumb impression was denied by the original defendant, who died in course of trial, it was obligatory on the part of the plaintiff to pinpoint the thumb impression, amongst more than one thumb impression appearing on the conveyance, as that of the defendant. The appeals were admitted on the question, whether the original agreement for sale, which was a registered instrument, was valid and enforceable as it was contended in the appeals that the respondent, at the time of entering into the said agreement, was a minor. No plea to that effect was taken in the written statement. In the absence of such a plea being taken, no question on the basis thereof could be formed at any stage. The trial court proceeded on the basis that the plaintiff/private respondent has failed to establish his case. The first Appellate Court felt to the contrary and opined that it was obligatory on the part of the defendant or his successor to establish the negative. The first Appellate Court ought to have had remitted back the matter to the trial court for the purpose of obtaining evidence as to which, amongst more than one thumb impression, was that of the deceased defendant. In order to give an opportunity to the successor of the defendant to establish that such evidence is not acceptable, all these appeals are allowed. The judgment under appeals is set aside. The suits are remitted back to the court below for the purpose as above.

Learned counsel for the review-applicant sought to assail the impugned order on the grounds, inter alia that while deciding and allowing the second appeals, this Court proceeded on the assumptions that the tenant has executed conveyance by putting his thumb impression when no witness identified his thumb impression amongst other thumb impressions on the conveyance tendered in evidence; admittedly, there was no relationship of deceased-defendant as tenant with the plaintiff and, hence, no deed was executed by the defendant, which was an error apparent on the face of record. Such error calls for review of the impugned judgment, as different modes are prescribed for proving the document. Hon''ble Court, while dealing with substantial question of law with regard to minority of the plaintiff at the time of entering into agreement, has rightly opined that no plea of minority of plaintiff was taken in the written statement and, as such, in the absence of such a plea, no question on the basis thereof could be framed at any stage. The conclusion leads to the inference that the substantial question of law was negated against the defendant-appellant, although, both the substantial questions of law have not been decided in sequence. The second appellate court cannot travel beyond it''s scope on the questions of facts and law.

According to learned counsel for the review applicant, admittedly, no substantial question of law in regard to perversity and/or wrong placing of burden of proof/onus of proof in judgment dated 19.05.2006 was framed at the time of hearing, which was sine qua non for allowing the second appeal.

Learned counsel for the review-applicant placed reliance upon the judgments of Hon''ble Supreme Court in Baljinder Singh Vs. Rattan Singh, , Rur Singh (D) th. LRS. and Others Vs. Bachan Kaur, and Chilakamarthi Mohana Rao Vs. Patibanda Soma Sundara Rao, .

In Baljinder Singh''s case (supra), it was observed by Hon''ble Supreme Court that the High Court proceeded to decide the issue regarding the period of limitation by making out a new case, for which, there was no pleading and even no question of law was framed.

In Babulal''s case (supra), it was observed by Hon''ble Supreme Court that having regard to the pleadings and the evidence that were placed on record, the High Court was not at all justified in interfering with the judgment passed by the first appellate court.

In Rur Singh''s case (supra), it was held by Hon''ble Apex Court that the High Court has limited jurisdiction while exercising powers u/s 100 C.P.C. A finding of fact arrived at by the trial court and/first appellate court may be interfered only when a substantial question of law arises for consideration.

In Chilakamarthi''s case (supra), it was observed by Hon''ble Supreme Court that the High Court ought not to have allowed the second appeal without formulating any substantial question of law. It was further observed that perusal of the judgment of High Court did not show that any substantial question of law was formulated or that that the second appeal was heard on a question of law, if any, so formulated.

There is no dispute about the proposition of law put forward by learned counsel for the review-applicant before this Court. The only question, which arises for consideration of this Court is - whether such infirmities, if any, attract Order 47 of the Code or not? Whether the order so passed by this Court on 19.05.2014 was on account of some mistake or error apparent on the face of record? Whether the same is to be reviewed for any other sufficient reasons? The reply to the said question, in the estimation of this Court, is in the ''negative''. In other words, the same do not fall within the purview of Order 47 of the Code.

By filing such review applications, the review-applicant seeks to re-argue the second appeal, which is not permissible in law. The review applications, therefore, fail and are dismissed.