Back
2019 Supreme(Gau) 417
IN THE HIGH COURT OF GAUHATI
Kalyan Rai Surana, J.
Rabindra Chandra Das - Appellant
Vs.
Md Saifuddin Ahmed And Others - Respondents
Review Petition No. 183 of 2018
Decided On : 25-06-2019
P. Choudhury, Adv., P. Khataniar, Adv.
Review jurisdiction should not be used to challenge a judgment with new issues, and a wrong reading or interpretation of an exhibited document may constitute a ground for appeal but not for review.
Headnote:
Review Application - Civil Procedure Code - Section 114, Order XLVII Rule 1 - Ext.5, Assam Urban Areas Rent Control Act, 1972 - The court reviewed the second appellate judgment and dismissed the review petition, finding no ground for interference with the original judgment.
Fact of the Case:
The review application was filed against the second appellate judgment, order, and decree. The petitioner argued that the records of the Trial Court and First Appellate Court needed re-examination due to unreadable certified copies, lack of proof of title by the respondents, inadmissible exhibits, and errors in the judgment. The respondents countered that the essential ingredients for review were not met and that the petitioner was raising new issues in the review petition.
Finding of the Court:
The court found that the grounds for review did not meet the requirements for review jurisdiction and were new grounds to challenge the original judgment. It cited previous cases to support its decision and concluded that there was no ground for interference with the second appellate judgment.
Issues: The issues included the admissibility of exhibits, proof of title, errors in judgment, and new grounds raised in the review petition.
Ratio Decidendi: The court held that a wrong reading or interpretation of an exhibited document may constitute a ground for appeal but not for review. It emphasized that review jurisdiction should not be used to challenge a judgment with new issues and cited previous cases to support its decision.
Final Decision: The review petition was dismissed, and no order was given as to cost.
JUDGMENT :
Kalyan Rai Surana, J.
Heard Mr. P. Chowdhury, the learned counsel for the petitioners as well as Mr. P. Khataniar, the learned counsel appearing for the respondents.
2. This review application under Section 114 read with Order XLVII Rule 1 of the Civil Procedure Code is directed against the second appellate judgment, order and decree dated 05.06.2017, passed by this Court in R.S.A. No. 87/2007.
3. The learned counsel for the petitioner had advanced his submissions in the entire post lunch sessions on 18.06.2019 and 19.06.2019. His reply argument was done by consuming entire post lunch session on 24.06.2019. The learned counsel for the respondent had concluded his argument by consuming entire post lunch session on 20.06.2019.
4. The learned counsel for the petitioner had submitted that the appellant had assailed the judgment of this Court before the Supreme Court of India by filing SLP (Civil) Diary Nos 24506/2018 and the said Hon'ble Court after hearing the learned counsel granted leave to the petitioner to approach this Court by way of review and thereupon the SLP was withdrawn.
5. It is submitted that the records of the learned Trial Court as well as First Appellate Court is required to be called for and re-examined again because the petitioner had applied for certified copy of Ext.5, but the certified copy was not readable. It is also submitted that while deciding first substantial question of law, this Court had referred to the order dated 11.12.1991, in respect of which the petitioner had no knowledge and accordingly, he could not be instructed on the said aspect. However, it is submitted that the records reveal that the petitioner had objected to the admissibility of Ext.5, which would appear from reading the cross examination of PW-1, which would show that when the said exhibit was exhibited, the petitioner had objected and his objection was recorded by the learned Trial Court. Hence, there was an error apparent on the face of the records.
6. It is submitted that the respondents- plaintiffs could not prove their title, yet the suit was decreed. It is also submitted that the suit was filed as a Title Suit and the suit was not a eviction proceeding under the provisions of Assam Urban Areas Rent Control Act, 1972 as such, without proving the title, the suit could not have been decreed. It is also submitted that there were two separate and distinct constructions out of which the suit was for Municipal Holding No. 144, standing in the name of plaintiff No.1, but the Municipal Holding No. 133 was in the name of the petitioner, as such, without declaration of title, the learned trial Court had wrongly held that both the holdings were for same premises and, as such, suit was wrongly decreed. It is also submitted that the Exhibit Nos. 2, 3 and 4 were also not admissible and could not be the basis to decree the suit. It is also submitted that there was no statement in the plaint that the respondents were the owners of the suit land. The learned counsel for the petitioner has also referred to the schedule of the suit property to explain that the suit land was not identifiable. Accordingly, it is submitted that the decision by the learned Trial Court, the learned First Appellate Court as well as by this Second Appellate Court were liable to be re-looked as the defect goes to the root of the matter. To canvass the point that the title must be proved, the learned counsel for the petitioner has placed reliance on the case of Indira Vs. Arumugam & Anr.,1988 1 SCC 614.
7. It is submitted that the agreement (Ext.5) was compulsorily registrable document and, as such, the same could not have been read in evidence. Moreover, it is submitted that the Ext.5 could not be proved in accordance with law. It is submitted that in respect of Ext.5, the predecessor- in- interest of the plaintiffs who had executed the said agreement (Ext.5) had expired. However, no attesting witness had been examined. On the point of examining the attesting witness
