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2011 (2) GCD 1721 (Guj) (DB)
Hon’ble Mr. Justice S.J. Mukhopadhaya &
Hon’ble Mr. Justice J.B. Pardiwala
Revandas Ranchhodbhai Rathod
Versus
Jyotiben Wd/o Rameshbhai Madhusudan Thakar & Others
Letters Patent Appeal No. 1241 of 20101—Decided on 10/05/2011
Bombay Tenancy and Agricultural Lands Act, 1948 — Sections 17, 32(1)-B, 76 and 77 — Civil Procedure Code, 1908 (Central Act 5 of 1908) — Order 47, Rules 4(2), 42(a) and (b) and 8 — Review — By Revenue Tribunal — On account of fraud in securing order — Jurisdiction — Scope of — Finding as to.
Held :
Court is of the view that no court or tribunal can be regarded as powerless to recall or review its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. Court has, no doubt, that the remedy to move for review/recalling the order on the basis of the newly discovered facts amounting to fraud of high degree cannot be foreclosed in such a situation. [Para 15]
Though Gujarat Revenue Tribunal may not be empowered to undertake substantive review on merits, in exercise of power under Section 17 of the Bombay Revenue Tribunal Act, but, in cases of fraud, no Tribunal can be regarded as powerless to review/recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. Therefore, as observed earlier in the judgment Court has no doubt that the remedy to move for recalling/review of the order on the basis of the newly discovered facts amounting to fraud of high degree cannot be foreclosed in such a situation.
[Para 21]
When the requirements of Order 47, Rule 4(2) is satisfied and the mandatory provisions have been complied with, mere omission to comply with Order 47, Rule -8 cannot be said to be a breach, for the simple reason that there was no contravention of Sub Rule 2(a) and (b) of Rule 4 of Order 47 of the Civil Procedure Code. In this view of the matter, Court do not find any substance in the said submission. Even if, it is assumed for a moment that it is a lapse on the part of the Tribunal, it would still remain a procedural lapse, for which the appellant should demonstrate how it has caused prejudice to him or how it has materially affected the merits of the case. On the contrary, there is a finding recorded by the learned Single Judge that in spite of the fact that the matter was adjourned for three times by the Tribunal, the appellant or his advocate did not remain present and then, ultimately, the Tribunal was left with no other option, but to proceed with the matter ex-parte. [Para 23]
Law Laid Down :
Remedy to review of order on the basis of the newly discovered facts amounting to fraud of high decree cannot be foreclosed.
J.B. Pardiwala, J.—The appellant – original petitioner seeks to challenge the judgment and order dated 03.12.2009 passed by learned Single Judge in Special Civil Application No. 13578 of 2008, whereby learned Single Judge rejected the writ petition, confirming order passed by Gujarat Revenue Tribunal dated 11.07.2006 in review.
2. Brief facts relevant for the purpose of deciding this appeal can be summarize as under:—
i. The dispute relates to a portion of land situated at Alarsa Ta. Borsad Dist. Anand, which was running in the names of heirs of Madhusudan Ratilal Thakar and Deviprasad Ratilal Thakar. The record reveals that vide entry No. 8009 dated 19.03.1980, the name of Madhusudan Thakar was ordered to be deleted and the land in question thereafter stood in the name of Deviprasad Ratilal Thakar. The said entry was certified on 10.08.1980. The record reveals that vide entry No. 8978 dated 24.05.1993, the name of Deviprasad Ratilal Thakar was deleted, in light of the statement of Deviprasad Ratilal Thakar that he was voluntarily relinquishing his right from the land in question. After this, the names of heirs of Madhusudan Ratilal Thakar were again mutated in the revenue record and accordingly entry was effected, which came to be certified on 07.09.1993.
ii. The record reveals that in the year 1993, the appellant – original petitioner initiated the proceedings by way of Tenancy Case No. 802 of 1993 before the Mamlatdar & ALT, Borsad by filing application under the provision of Bombay Tenancy and Agricultural Lands Act. The record reveals that initially names of two heirs of Madhusudan Ratilal Thakar i.e. Mukesh Madhusudan Thakar and Ramesh Madhusudan Thakar were included as party – respondents in the said proceedings and accordingly they were joined as party to the said proceedings. However, it appears that one application was submitted by the learned advocate appearing on behalf of applicant on 30.03.1998, stating that only Deviprasad Ratilal Thakar has right, title and interest in the land in question and that the heirs of Madhusudan Ratilal Thakar and/or heirs of Ratilal Thakar have no right, title and interest in the land in question and prayed for deletion of names of heirs of Madhusudan Ratilal Thakar. It appears that as a result of that, names of heirs of Madhusudan Ratilal Thakar were ordered to be deleted.
iii. The Record reveals that when the application was preferred on behalf of appellant for deletion of the names of heirs of Madhusudan Ratilal Thakar from the tenancy proceedings, the appellant has relied upon the entry No. 8009 and suppressed the fact about the entry No. 8978 dated 24.05.1993, wherein, Deviprasad Ratilal Thakar voluntarily relinquished his right from the ancestral property. In this manner, only the name of Deviprasad Ratilal Thakar continued in the tenancy proceedings, initiated by the appellant.
iv. Surprisingly, on the very next day of deleting the names of heirs of Madhusudan Ratilal Thakar, Mamlatdar & ALT, Borsad allowed the Tenancy Case No. 802 of 1993 and declared the appellant as tenant of the land in question and allowed the said application filed by the appellant under Section 32(1)(B) of the Bombay Tenancy and Agricultural Lands Act.
v. It is evident that at least up to this stage, factual position was that Deviprasad Ratilal Thakar had no right or title on the ancestral property as he had already relinquished his right in favour of heirs of Madhusudan Ratilal Thakar and whose names were mutated in the record of rights.
vi. In the meantime, the record reveals that heirs of Madhusudan Ratilal Thakar sold the land in question to respondent No. 2 – Gokulbhai Solanki by registered sale deed dated 09.06.1997. This factum of sale deed dated 09.06.1997 is also noted by Mamlatdar & ALT, Borsad in his order dated 31.03.1998. There is also a reference of Civil Suit filed by respondent No. 2 against the appellant for permanent injunction. In spite of the absence of heirs of deceased Madhusud
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