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IN THE HIGH COURT OF ALLAHABAD AT LUCKNOW
RAJESH SINGH CHAUHAN, SUBHASH VIDYARTHI, JJ.
Jai Singh – Appellant
Versus
The State of U.P. – Respondent
Civil Misc. Review Application Defective No. 5 of 2022
Decided On : 13-04-2023
Civil Procedure Code,1908 - Order XLVII - Rule 1 - Review application - Seeking review of judgment and order - Filed with review application and in index, it is mentioned that “Vakalatnama already on record - Advocate had filed his Vakalatnama on behalf of opposite party no. 4 in Writ © No. on alongwith I.A. No., which was supported by an affidavit stating that earlier he had filed a modification application through., Advocate and matter was argued, Senior Advocate; that opposite party no. 4 had paid fee to both of them and now he wanted to file a review application, for which he has engaged - Vakalatnama in favour was filed when Writ Petition as well as subsequent review application filed and an application for modification/recall of order dated filed by opposite party no. 4 had already been decided and nothing was pending before Court - Whether petitioner of aforesaid Writ Petition is owner of House No. 216 or not, would not make any difference on legality or otherwise of structures raised by review petitioner - Court do not find any error, what to say about an error which is apparent on face of record, in order dated isposing of Writ Petition without issuing any direction to demolish premises which is non-compoundable and merely recording an expectation that Parishad will take appropriate decision in accordance with law. [Para 29]
Finding of Court : Court find that petitioner of Writ Petition brought certain facts before Court by filing Writ Petition No. 13864 (MB) of 2019 and after inviting counter affidavit, this Court was satisfied that some illegal constructions have been raised by present review petitioner - Some of which some are compoundable and some are non-compoundable and Writ Petition was disposed of without issuing any direction, by merely expressing an expectation that Parishad will take a decision in accordance with law - Whether petitioner of aforesaid Writ Petition is owner of House No. 216 or not, would not make any difference on legality or otherwise of structures raised by review petitioner and Court do not find any error, what to say about an error which is apparent on the face of record, in order dated - second ground pressed by learned counsel for review applicant is that earlier Compounding Bye-laws 2010 were in force which required a larger area to be left as set-back, including side set-back and back set-back - Validity of demolition notice dated is under question before this Court in Writ (C) No. and petitioner has already been granted interim protection in aforesaid Writ Petition and these grounds cannot be raised as a ground of review for order dated passed in Writ (C) No., wherein review petitioner had filed a counter affidavit and plea of amendment in relevant Rules had not been raised and Court has not decided that plea - Failure of this Court to decide a plea that has not been raised, cannot be termed as an error apparent on face of record.
Result : Review petition/application lacks merit and the same is accordingly dismissed.
ORDER :
C.M. Application No. 1 of 2022:
1. This is an application for condonation of delay in filing the review application. The application is supported by an affidavit, in which reasons for delay have been explained sufficiently.
2. Accordingly, the application is allowed. Delay, if any, in moving review application is hereby condoned.
Order on memo of Review Application:
3. The instant application has been filed seeking review of the judgment and order dated 29.08.2019, passed by a Division Bench of this Court consisting of Hon’ble Mr. Justice Pankaj Kumar Jaiswal and Hon’ble Mr. Justice Jaspreet Singh in Writ (C) No. 13864 of 2019, with the following description of the array of parties:
VERSUS
1. State of U.P. through its Principal Secretary Housing and Urban Planning U.P.
2. Housing Commissioner, U.P. Awas Vikas Parishad
3. Executive Engineer, Lucknow
4. Tej Narayan Soni - Opposite Parties
4. No Vakalatnama has been filed with the review application and in the index, it is mentioned that “Vakalatnama already on record.” Sri. Raj Vikram Singh Advocate had filed his Vakalatnama on behalf of the opposite party no. 4 Tej Narayan Soni in Writ (C) No. 13864 of 2019 on 03.01.2022 alongwith I.A. No. 22 of 2022, which was supported by an affidavit stating that earlier he had filed a modification application through Ms. Pushpila Bisht, Advocate and the matter was argued by Sri Jaideep Narayan Mathur, Senior Advocate; that the opposite party no. 4 had paid fee to both of them and now he wanted to file a review application, for which he has engaged Sri Raj Vikram Singh, Advocate. The Vakalatnama in favour of Sri. Raj Vikram Singh Advocate was filed when the Writ Petition as well as the subsequent review application filed by Jai Singh and an application for modification/recall of the order dated 31.08.2021 filed by the opposite party no. 4 Tej Narayan Soni had already been decided and nothing was pending before this Court.
5. Sri. Jai Singh, who has wrongly been described as the petitioner in the Review Petition, raised a preliminary objection before this Court that he has not filed the review application and he has wrongly been described as the review applicant.
6. On 07.04.2022 Sri. Raj Vikram Singh, the learned counsel for the opposite party no. 4 Tej Narayan Soni, had sought time to move an application to correct the array of parties. He filed an application for correction in the memo of parties seeking permission to mention the name of Tej Narayan Soni as applicant in the review application. The aforesaid application was allowed by means of an order dated 25.07.2022 and a direction was issued for carrying out the necessary corrections within ten days. However, the learned Counsel for the opposite party no. 4 Tej Narayan Soni did not incorporate the corrections in the memo of the review application and the description of the petitioner, mentioned in the review petition is still Jai Singh. Even during hearing of the review application, when an objection to this effect was raised by Sri. Jai Singh, the learned Counsel for the opposite party no. 4 Tej Narayan Soni did not make any prayer for extension of time granted to him for carrying out the necessary corrections in the array of parties. Therefore, the review application as framed, is liable to be rejected for non-prosecution by non-compliance of the order dated 25.07.2022.
7. However, we proceed to examine the review on its merits in the interest of justice.
8. The aforesaid Writ Petition was filed by the Petitioner Jai Singh seeking a direction to the Uttar Pradesh Avas Evam Vikas Parishad for demolition of the illegal constructions raised in the house of the opposite party no. 4 - Tej Narayan Soni.
9. The Avas Evam Vikas Parishad had filed a counter affidavit in the Writ Petition stating that some parts of the construction had been marked by the officials as compoundable and some other parts were marked as non-compoundable in the compounding map. The review
Point of Law : Court find ourselves unable to agree with the submissions made by learned counsel for the review petitioner and Court do not find any error, much less an error apparent on the face of ....
The power of review is limited to correcting apparent errors on the record and cannot be used to rehash arguments or findings that have been previously settled.
The court reinforced that review petitions are not an opportunity to re-argue cases or appeal decisions already made unless clear, patent errors exist.
The scope of a Review Petition is limited to the grounds specified in Order 47 Rule 1 CPC, and new grounds cannot be introduced in a Review Petition.
Rent control – Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of Code of Civil Procedure. In review jurisdiction, mere di....
Review Petition – Jurisdiction of High Court while exercising review cannot be exercised as an inherit power nor as Appellate Court be exercised in guise of power of review – Power of review may be e....
The main legal point established in the judgment is the limited scope of review jurisdiction, emphasizing the requirement for a mistake or error apparent on the face of the record and the court's ina....
A party must exercise due diligence in legal proceedings, as excessive delay in filing a review petition, without sufficient grounds, cannot be condoned.
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