w w w . L a w y e r S e r v i c e s . i n


Sana Lakshmi Devi (died) per LRs. & Others v/s M/s. Prime Properties, rep. by its Partner, Najeeb Ahmed & Others

    CRP No. 204 of 2022
    Decided On, 14 March 2022
    At, High Court of for the State of Telangana
    By, THE HONOURABLE MR. JUSTICE A. VENKATESHWARA REDDY
    For the Petitioners: M.V. Durga Prasad, Advocate. For the Respondents: A. Venkatesh, Senior Counsel, P. Venugopal, Advocate.


Judgment Text
1. This Civil Revision Petition is filed under Article 227 of the Constitution of India, assailing the order dated 29.12.2021 in IA No.1061 of 2021 in IA No.891 of 2021 in OS No.898 of 2001 on the file of the I Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar.

2. A common order dated 29.12.2021 was passed in IA No.1061 of 2021 in IA No.891 of 2021, IA No.1062 of 2021 in IA No.892 of 2021 and IA No.1063 of 2021 in IA No.893 of 2021 in OS No.898 of 2001. However, the petitioners/ respondents 3 to 11/defendants 3 to 11 have assailed the orders in IA No.1061 of 2021 in IA No.891 of 2021 in OS No.898 of 2001, through this Civil Revision Petition.

3. IA No.1061 of 2021 was filed under Order-47, Rule-1 of the Civil Procedure Code (for short ‘CPC’) to review the order dated 29.11.2021 passed in IA No.891 of 2021 in OS No.898 of 2001 and to take the rejoinder on record. IA No.891 of 2021 was filed under Order-VIII, Rule-9 of CPC to permit the plaintiff to file rejoinder to the plaint in the original suit in the interest of justice.

4. Similarly, IA Nos.892 and 893 of 2021 were also filed for identical relief. All those three applications were dismissed by the trial Court, through the common order dated 29.11.2021. Since it is a short common order, the relevant portions from paragraph Nos.4 to 6 is extracted as under, for the sake of convenience.

“4. The entire provision of law says that on filing of written statement or additional written statement, if at all there is any counter to be given to the pleadings put forth by the defendant through his written statement or additional written statement, the plaintiff may be permitted to file rejoinder. On perusal of documents available it can be perceived that already the plaint was amended and in fact the suit is pending since 2001 and now in the year 2021 the plaintiff files a petition for rejoinder without there being specific reasons assigned. On perusal it is also seen that no rejoinder copy is filed along with the petition to even peruse as to what facts they need to reply. The learned counsel appearing for petitioner/plaintiff had argued that only if the petition is allowed they would be in a position to file the rejoinder in the court. But per contra, the learned counsel appearing for respondents/defendants has argued that they are served with a copy of rejoinder which runs into voluminous number of pages with new facts, which in fact could not be perceived by this court as the copy of said rejoinder is not available with court.

5. The learned counsel appearing for petitioner/plaintiff has relied on the judgment of Hon’ble High Court in the case of Aloor Subrahmanyam Vs. Suthram Prabhakar and others (CRP No.5008 of 2011) wherein it was held that it is on the courts to take a wide view while allowing these kind of petitions to avoid multiplicity of pleadings and to decide the cases comprehensively and effectively all the questions arises in the case. Another judgment is also filed of Hon’ble High Court in the case of Malgireddy Venkata Ramana Vs. Thippana Narsi Reddy (AIR 2010 AP 114) wherein the Hon’ble High Court has categorically stated that Order VIII Rule 9 CPC cannot be treated as one under Order VI Rule 17 CPC and the plaintiff can be permitted to file rejoinder to explain the additional facts which has been incorporated in the written statement but however, now new facts can be permitted to put forth. In the absence of filing of rejoinder along with petition to ascertain whether the said rejoinder confines only to reply to written statement and additional written statement, it may not be proper to allow petition blanket permitting the plaintiff to file rejoinder wherein there is every chance to incorporate a new fact.

6. The learned counsel appearing on behalf of respondents/defendants are argued that if at all new fact is pleaded by the petitioner/plaintiff through his rejoinder, the defendant would loose his right to place his defence to the said new fact as there is no provision in law to file the rejoinder to rejoinder. In these circumstances and considering the above discussions, these petitions are not maintainable and accordingly, these petitions are dismissed.”

5. After dismissal of IA No.891 of 2021, through the above said common order, the plaintiff has filed review application in IA No.1061 of 2021 on 13.12.2021 under Order-47, Rule-1 read with Section 151 of CPC for which contesting defendants 3 to 11 have filed a detailed counter on 23.12.2021. The learned I Additional Senior Civil Judge, Ranga Reddy District, has allowed the said review petition in IA No.1061 of 2021 in IA No.891 of 2021, through the common order dated 29.12.2021, by setting aside the earlier common order, dated 29.11.2021, consequently rejoinder that was filed by the plaintiff was taken on record. This order impugned in IA No.1061 of 2021 in IA No.891 of 2021 is assailed by the contesting defendants 3 to 11, through the present civil revision petition. For ready reference, paragraph Nos.9 to 13 of the order impugned is extracted as under:

“9. The learned counsel for petitioner/plaintiff had argued that though the rejoinder was filed in court i.e. in the Office on 27-11-2021, the same was not placed before the Officer and the court has passed orders on 29-11-2021. He also mentioned the S.R numbers as 5169/2021 to 5178/2021 dated 27-11-2021 stating that though they already filed rejoinders in Office and the court had passed orders stating that the rejoinder was not available for perusal. Another contention of the petitioner/plaintiff is that the earlier petition was dismissed on the contention that the defendant would loose his right to place his defence to the new facts if the fact is brought on record through rejoinder. In this regard, the learned counsel for petitioner/plaintiff had relied on Order 8, Rule 9 of Code of Civil Procedure which is extracted hereunder:

Subsequent Pleading – No pleading subsequent to the written statement of a defendant other than by way of defence to setoff or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additionally written statement from any parties and fix a time of not more than thirty days for presenting the same.

10. The learned Counsel for petitioner/plaintiff argued that a bare reading of Order 9, Rule 9 of Code of Civil Procedure though gives its negative meaning that no subsequent pleading to the written statement can be brought, but however, the same is permitted on the leave of the Court.

11. By placing reliance on this, the Learned Counsel for petitioner/plaintiff had argued that he has sufficient reasons to seek to file rejoinder as the defendants/respondents have filed additional written statement subsequent to amendments and so many defendants were added subsequently, as such, he want to put forth the pleadings to assist the court in just conclusion.

12. The Learned Counsels for the respondents argued that the court cannot permit the party to plead further once the written statement is filed and in fact, there is no proper reason put forth to grant permission. The learned counsel for respondents/ defendants had placed reliance on the judgment of Hon’ble Apex Court in the case of Shri Ram Sahu (Dead) through LRs and others v. Vinod Kumar Rawat and others [2020 LawSuit (SC) 685], wherein it was held that a review petition can’t be filed on the appeal grounds and review cannot be treated like an appeal in disguise. He argued that this petition is not at all maintainable in view of above judgment. The Learned Counsel for petitioner/plaintiff argued that he is not pleading on new fats, but there was a technical aspect when the rejoinder was not even considered though was filed in Court before passing the orders. Hence, requested to allow the petition in terms of review. On reading the provisions together, this court is of the opinion that this case is a fit case to review its order dated 29-11-2021 and permit the petitioner/plaintiff to file the rejoinder which was not placed before this Court though filed and is already on record and to allow the same to be on record. The mere filing of rejoinder will not vitiate the rights of the parties and however, the parties would lead their evidence and these pleadings would definitely assist the court in deciding the case to its merits. In the circumstances, these petitions are to be allowed. Accordingly, both points are answered.

13. In the result, these petitions are allowed by reviewing the order dated 29-11-2021 and setting aside the same also consequently, the rejoinder which is already filed in Court is taken on record.”

6. Heard learned counsel on both sides. Perused the material placed on record. The respondent/plaintiff has filed counter with material papers. The detailed submissions have been made by the learned counsel for the petitioners and respondents which are more or less on pleaded lines. Therefore, it may not be necessary for this Court to refer in detail such submissions. However, the submissions so made have received due consideration of the Court.

7. For the sake of convenience, the parties are hereinafter referred to as plaintiffs and defendants as arrayed in the original suit.

8. The plaintiff has filed the original suit in OS No.898 of 2001 for cancellation of sale deed document No.2548 of 1996 dated 15.04.1996 and for perpetual injunction. Initially, the suit was filed against the first defendant alone. Thereafter, the second defendant was impleaded. The defendants have filed IA No.787 of 2018 to implead the subsequent purchasers and it was dismissed by the trial Court. When the matter was carried to the High Court in CRP No.391 of 2019, it was allowed on 27.03.2019. Though the plaintiff has preferred SLP No.11502 of 2019, the Hon’ble Supreme Court as per the orders dated 08.05.2019 dismissed the SLP confirming the orders of the High Court.

9. Accordingly, the revision petitioners herein, who are the defendants 3 to 11, were added as parties to the suit, pursuant to the directions of this Court in CRP No.391 of 2019. Thereafter, plaint was amended, and the added defendants have filed their written statement. Then the plaintiff has filed an application in IA No.891 of 2021 under Order-VIII, Rule-9 of CPC seeking permission to file rejoinder, and it was dismissed by the trial Court, as per the common order dated 29.11.2021. Being aggrieved by the said common order, the plaintiff has filed IA No.1061 of 2021 under Order-47, Rule-1 of CPC to review the order dated 29.11.2021 in IA No.891 of 2021. The Court below has allowed the said review petition setting aside the common order dated 29.11.2021.

10. The learned counsel for the revision petitioners/ defendants 3 to 11 vehemently contends that the order impugned is beyond the scope of power of review under Order 47 CPC and that virtually the trial Court has substituted the earlier order dated 29.11.2021 with the order dated 29.12.2021 and it is liable to be set aside. The learned counsel relied on the following decisions:

a) Rekha Mukherjee v. Ashish Kumar Das (AIR 2005 Calcutta 74);

b) Ram Sahu (dead) through LRs and othes v. Vinod Kumar Rawat and others (2020 SCC Online SC 896)

c) Sasi (dead) through LRs v. Aravindakshan Nair and others (2017) 4 SCC 692);

d) Copy of orders dated 03.12.2020 in CC No.127 of 2019 on the file of Bombay High Court; and

e) Copy of orders dated 27.03.2019 in CRP No.391 of 2019 on the file of this Court.

11. Per contra, Sri P. Venu Gopal, learned Senior Counsel on behalf of plaintiff seeks to submit that the trial Court within its jurisdiction has entertained the review petition and no jurisdictional error is committed by the trial Court. Procedure is only meant to facilitate the administration of justice and not to defeat the same. Procedural and technical hurdles shall not be allowed to come in the way of Court while rendering substantial justice. Further submitted that if the procedural violations does not seriously cause prejudice to adversary party, courts must clean towards doing substantial justice rather than relying upon procedural and technical violation. The learned senior counsel relied on the following decisions:

a) Sital Prasad Saxena v. Union of India (1985) 1 SCC 163).

b) Krishna Murthy v. Hanumakka (2019 (200) AIC 644 = MANU/KA/3414/2019 = 2019 SCC Online Kar 3099);

12. Section 114 of CPC provides for a substantive power of review by a civil Court. Though Section 114 CPC does not prescribe any limitation on the power of the Court, such limitations have been provided for in Order-47 of CPC, Rule-1 whereof reads as under:

“The power of a civil court to review its judgment/decision is traceable in Section 114 CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC, which reads as under:

‘1. 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 of the court which passed the decree or made the order.’”

13. In Rekha Mukherjee’s case (1st supra), a Division Bench of Calcutta High Court while dealing with the powers of the Court under Section 114 CPC and Order-47, Rule-1 CPC held that review and appeal cannot go together, even if appeal is filed after the review is allowed by the same party, he has to strike to one or the other. An option of electing either of the two is to be exercised. Order47 clearly lays down a provision in respect of remedy where an appeal is not filed. Even if an appeal is filed during the pendency of review provision provided under Order-47 was attracted.

14. In Ram Sahu’s case (2nd supra), the Hon’ble Supreme Court at para-34 while dealing with the Section 114 of CPC at para-34 held as under:

“To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review.”

15. In Sasi’s case (3rd supra), the Hon’ble Supreme Court dealt with the scope and extent of the review and summarized the principles by referring to various earlier decisions.

16. In Parsion Devi v. Sumitri Devi (1997) 8 SCC 715), the Hon’ble Supreme Court while relying upon the judgments in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (1979) 4 SCC 389) and in Meera Bhanja v. Nirmala Kumari Choudhury (1995) 1 SCC 170) held as under:

“9. 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 self-evident 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’.”

17. Again, in the case of State of West Bengal and others v. Kamal Sengupta and another (2008) 8 SCC 612), the Apex Court at para- 35 held as under:

“35. The principles which can be culled out from the above noted judgments are:

(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1 CPC.

(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.

(iii) The expression “any other sufficient reason” appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.

(iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).

(v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review.

(vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.

(vii) While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.

(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.”

18. The Hon’ble Supreme Court in Sital Prasad Saxena’s case (4th supra) held that procedure is meant only to facilitate the administration of justice and not to defeat the same. The Hon’ble Supreme Court also held that the procedural and technical hurdles shall not be allowed to come in the away of court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon the procedural and technical violation (Sugandhi (dead) by LRs and another v. P. Rajkumar represented by his Power Agent Imam Oli (2020) 10 SCC 706).

19. Thus, the power of review is not an inherent power, it is a creature of statue. The power of review is subject to the provisions of Section 114 and Order-47 Rule-1 CPC. It is an exception to the general rule to the effect that once judgment is signed and pronounced, it cannot afterwards be altered. In review of the Court can only consider the errors apparent on the face of record in its judgment or order. In the grab of review, fresh substantial question of law cannot be considered and a party cannot be permitted to reopen the matter and to gain a full-fledged innings for making fresh submission and substitution of earlier orders. Review in not an appeal in disguise and even an erroneous order cannot be reheard or corrected or set aside by invoking the review jurisdiction. A review can only lie on the grounds mentioned Order 47 Rule 1 CPC.

20. Reverting back to the facts of the present case, as discussed above, the plaintiff has filed original suit in the year 2001 against the sole defendant, thereafter the other defendants were impleaded, more particularly after impleading the present revision petitioners, they have filed a detailed written statement for which the plaintiff has requested the Court below for permission to file rejoinder under Order-VIII, Rule-9 of CPC. Initially, that application filed under Order-VIII, Rule-9 CPC in IA No.891 of 2021 was dismissed by the trial Court, through the common order, dated 29.11.2021. Thereafter, the plaintiff has filed an application under Order-47, Rule-1 CPC to review the said common order. Accordingly, all these review applications are numbered as IA No.1061 of 2021 in IA No.891 of 2021, IA No.1062 of 2021 in IA No.892 of 2021 and IA No.1063 of 2021 in IA No.893 of 2021 in OS No.898 of 2001. All these review applications were allowed and the orders impugned in IA Nos.891, 892 and 893 of 2021 were set aside and they were substituted with a detailed

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order permitting the plaintiff to file rejoinder with an observation that rejoinder which was already filed is taken on record. In that view of the matter, since under the grab of review the original order is substituted with the impugned order, I am not inclined to accept the submissions of the learned senior counsel for the plaintiff. 21. Undisputedly, the power of review has its own limitations and the order or judgment may be open to review inter alia if there is a mistake or error apparent on the face of the record and permitting the order to stand will lead to failure of justice. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for a patent error. Thus in exercise of power of review, it is not permissible to rehear and correct an erroneous decision. 22. The sum and substance of the aforesaid discussion is that the trial Court has committed grave error in allowing the review petitions by totally substituting the earlier order dated 29.11.2021 with the order impugned dated 29.12.2021 in exercise of powers under Section 114 and Order-47, Rule-1 CPC. Though the learned Judicial Officer has referred to the judgment of Supreme Court in Ram Sahu’s case (2nd supra), in impugned order at para-12, no attempt was made either to distinguish the same or to follow the authoritative pronouncement made by the Hon’ble Supreme Court on the scope of review petitions. When the facts of the present case are tested on the touch stone of principles laid by the Supreme Court in the above decisions, the answer is in the negative, the order impugned suffers from jurisdictional error and infirmities. The learned Judicial Officer is totally misdirected as to the scope of review under Section 114 and Order-47, Rule-1 of CPC in passing the order impugned dated 29.12.2021 and it is not sustainable, liable to be set aside. 23. In the result, the Civil Revision Petition is allowed and the order impugned dated 29.12.2021 in IA in IA No.1061 of 2021 in IA No.891 of 2021 in OS No.898 of 2001 on the file of the learned I Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar, is hereby set aside. Consequently, IA No.1061 of 2021 stands dismissed. In the circumstances of the case, there shall be no order as to costs. 24. As a sequel, interlocutory applications, if any pending, shall stand closed.
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