Syed Mohammad Sajid Nadvi vs Darul Uloom Tajul Masajid

Sanjay Yadav, J—Heard on admission.

This petition under Article 227 of the Constitution of India at the instance of plaintiffs, is directed against order-dated 12.1.2015 passed by Sixteenth Additional District Judge, Bhopal in MJC No. 377/2009; whereby an application under Order 47 Rule 1 read with Section 141 of the Code of Civil Procedure, 1908 seeking review of judgment and decree dated 1.9.2009 in Regular Civil Appeal No. 267-A/2008, has been dismissed.

Relevant facts briefly are that plaintiffs instituted Regular Civil Suit No. 142-A/1987 for grant of preventive injunction against the defendants restraining them from taking forcible possession of the suit house except in due course of law.

Defendants submitted their written statement refuting the allegations made in the plaint; admitted petitioners'' possession over the suit house but as a trespasser. During pendency of the suit, plaintiffs filed an application for pronouncing judgment on admissions made in the written statement, under Order 12 Rule 2 CPC on 7.3.2007. Contentions were denied by defendants and they submitted application-cum-undertaking along with affidavit on 22.3.2007 seeking dismissal of suit on the ground that with the filing of undertaking by them, cause of action has disappeared. The application found favour with the trial Court which dismissed the suit on 27.4.2007. However, in a challenge by the plaintiffs under Section 96 CPC, the order-dated 27.4.2007 passed by the trial Court was set aside by judgment and decree dated 23.4.2008 in Regular Civil Appeal No. 156-A/07. The matter was remanded with direction to the trial Court to decide the applications after affording opportunity of hearing to the parties. On remand, applications were reconsidered culminating into judgment and decree dated 4.7.2008; whereby, the suit filed by the plaintiff was decreed. Defendants preferred an appeal thereagainst and the same was heard and decreed on 1.9.2008 passed in Regular Civil Appeal No. 267-A/2008; whereby judgment and decree passed by trial Court was set aside and the matter was remanded to the trial Court for deciding the suit on evidence of the parties after affording opportunity of hearing to the parties except the issue regarding ownership.

Aggrieved, plaintiffs filed an application under Section 114 read with Order 47 Rule 1 CPC seeking review of the judgment and decree dated 1.9.2009 on the ground that First Appellate Court while deciding the lis has not taken into consideration all the contentions raised by plaintiffs through written arguments.

Vide impugned order-dated 12.1.2015, the First Appellate Court dismissed the review petition on a finding that there is no error apparent on the face of record. This order is under challenge.

Grievance of the petitioner is that without appreciating numerous judgments cited at bar and exhaustive written arguments, the Reviewing Court has mechanically dismissed the review petition holding that there is no apparent error on the face of record. Relying upon the decisions in Moran Mar Basselios Catholicos and Another Vs. The Most Rev. Mar Poulose Athanasius and Others, AIR 1954 SC 526 : (1955) 1 SCR 520 , State of Madhya Pradesh and Another Vs. Jaswantpuri and Others, AIR 1989 MP 115 : (1991) ILR (MP) 306 : (1989) JLJ 413 : (1988) MPLJ 712 , Gokuldas v. Sikandar Khan 1961 MPLJ (SN) 43, Radhika Bai v. Sankirtan 1962 MPLJ (SN) 25 (DB) and Kalpana Shivhare (Smt.) v. State of M.P. 2015 Revenue Nirnayan 29 (DB), it is contended that the principle of law culled out from these decisions if applied in the case at hand would expose the impugned order for interference in a petition under Article 227 of the Constitution of India. It is contended that the Reviewing Court has lost sight of the fact that the First Appellate Court while reversing the judgment and decree had lost sight of the provisions of Section 17 to 23 of the Evidence Act and the decisions by the Supreme Court on the consequences of admission.

These submission are examined in the context of the findings by the First Appellate Court in judgment and decree dated 1.9.2009. The First Appellate Court framed following issue in the appeal -

And, while addressing as to admission and undertaking as posed in paragraph 9 and relying on the decision in Bhoop Singh Vs. Ram Singh Major and others, AIR 1996 SC 196 : AIR 1995 SC 196 : (1996) 2 BC 365 : (1995) 6 JT 534 : (1996) 112 PLR 559 : (1995) 5 SCALE 228 : (1995) 5 SCC 709 : (1995) 3 SCR 466 Supp , Mr. Zulfiquar Ali Khan and Others Vs. J.K. Helene Curtis Ltd. and Others, (2002) 5 AD 208 : AIR 2002 Delhi 425 : (2002) 62 DRJ 442 and Mr. Naresh Jain Vs. Mr. Krishna Rani, (2002) 5 AD 459 : (2002) 97 DLT 770 : (2002) 62 DRJ 777 , found -

Review was sought on the ground that the finding arrived at by the First Appellate Court is due to error apparent on the face of record because First Appellate Court had failed to appreciate the correct proposition of the aspect of ''undertaking'' which ought to have been treated as an admission.

Contentions of the petitioner when tested on the finding arrived at by the First Appellate Court and reconsidered by the Reviewing Court cannot be appreciated because First Appellate Court, as is apparent from the entire judgment, had re-analysed entire material documents on record and after re-appreciating the facts threadbare, arrived at a conclusion that the trial Court has committed grave error of law in treating the ''undertaking'' to be an admission.

These findings being based on re-appraisal of the material documentary evidence on record cannot be customized as an error apparent on the face of record. Mere likelihood of error in judgment cannot be interfered in a review petition because trite it is that unless there is an error apparent on the face of record, no review petition is tenable.

In Dr. Subramanian Swamy Vs. State of Tamil Nadu and Others, AIR 2015 SC 460 : (2014) AIRSCW 6893 : (2014) 1 JT 590 : (2014) 1 SCALE 79 : (2014) 5 SCC 75 , it is held -

"52. The issue can be examined from another angle. The Explanation to Order 47 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") provides that if the decision on a question of law on which the judgment of the court is based, is reversed or modified by the subsequent decision of a superior court in any other case, it shall not be a ground for the review of such judgment. Thus, even an erroneous decision cannot be a ground for the court to undertake review, as 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 in absence of any such error, finality attached to the judgment/order cannot be disturbed. (Vide Rajender Kumar and Others Vs. Rambhai and Others, (2002) ACJ 1822 : AIR 2003 SC 2095 : (2002) 1 JT 549 Supp .

Considered thus, the impugned order cannot be faulted with as would warrant any indulgence.

In the result petition fails and is dismissed. However, there shall be no order as to costs.