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2007 Supreme(UK) 574
2008 UAD 759
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Rajesh Tandon
Writ Application No. 1503 of 2007
in
Writ Petition No. 3853 of 2001 (MS)
SADIQ HUSSAIN & ORS. – Petitioners
Versus
ADDL. DISTRICT JUDGE, DEHRADUN & ORS. – Respondents
Decided on : 30.11.2007
For the Petitioners:Mr. Arvind Vashist, Advocate
For the Respondents:Mr. B.P. Nautiyal, Advocate
Headnote:Review of judgment/order — Grounds for — Review petition can be filed only for consideration of important matters or evidence which, by mistake or error on the face of the record could not be considered when the order sought to be reviewed was passed — A review petition could not be filed for re-hearing the entire matter by changing the counsel as well as observations on the new facts which were not available before the court below — Power of review cannot be exercised as an alternative mode of appeal or to provide the parties another opportunity of hearing on merit more so when the grounds taken by the review petitioner in the review application have already been discussed and considered on merits — Court, in such circumstances, lacks jurisdiction to interfere with the judgment and order in question and it cannot act as a court of appeal in the review application. (Paras 19, 27)
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Hon’ble Rajesh Tandon, J.
Heard Sri Arvind Vashist, counsel for the review applicants and Sri B.P. Nautiyal, counsel for the petitioners.
2. Present application has been preferred by the respondent No. 2 – review applicant for reviewing the judgment and order dated 22nd February, 2007 passed by this Court, whereby the order dated 10.5.2000 passed by the respondent no. 1 Additional District Judge, Dehradun has been set aside and respondent no. 2 has been directed to be evicted from the premises in dispute.
3. According to the review applicant, she had engaged Sri B.D. Kandpal, Advocate in her case, but he could not communicate the date fixed in the case, as such instructions could not be given to him. As a result of which, true facts could not be brought to the knowledge of the Court.
4. Order sheet shows that the case was argued by the counsel for both the sides on 28.8.2006 and the judgment was delivered on 22.2.2007. During this period or before 28.8.2006 neither the counter affidavit was filed nor any request for time for filing the same was made.
5. The review applicant has alleged that the applicant is an infirm lady of 86 years and her son Vinesh Kumar is a handicapped person. Her daughter Anjali Bhaseen is working in Canara Bank.
6. Present review application has been filed on the following grounds :
“4. That Sri B.D. Kandpal, Advocate did not inform her about listing of the matter and he was contacted time and again but the information conveyed to the applicant was that the record of the petition is not traceable.
5. That the applicant is aged and infirm lady. She is aged about 86 years and is ailing. Her son Vinesh Kumar Bhaseen is handicapped and a daughter Anjali Bhaseen is serving in Canara Bank. Due to her old age and illness the applicant was not in a position to come Nainital very often and therefore telephonic continuity with Sri B.D. Kandpal advocate was maintained.
7. That the applicant was not aware that 22.2.2007 or any other date was fixed in the matter and therefore, proper instructions could not be issued to Sri B.D. Kandpal Advocate as a result of which true facts could not be brought to the knowledge of this Hon’ble High Court when the writ petition aforementioned as heard.
8. That there were various new (the events subsequent to the appellate order) and important matter which could not be produced at the time when the impugned judgment was passed. There is a mistake apparent on the face of record and it is therefore expedient in the interest of justice that this review application be allowed.
12. That under the aforesaid circumstances the order dated 16.12.1997 was challenged by the applicant by filing RCA No. 152 of 1997. During pendency of the appeal aforementioned the applicant adduced additional evidence which established that the landlord was very conveniently carrying on his timber business from major portion of the property of which the disputed property is small fragment. The landlord filed his rebuttal evidence but failed to refut the aforesaid evidence and after in depth analysis of evidence adduced by the parties the prescribed authority recorded a finding that need of the landlord was not bonafide. The finding about comparative hardships were also recorded in tenant’s favour and thus, the order dated 15.12.1997 passed by prescribed authority was set aside.
15. That during pendency of this writ petition Sri Vinesh Kumar Bhaseen the applicant’s son was discharged from his services vide order dated 17.11.2006.”
7. After filing the review application, counsel for the review applicant has prayed for filing of the reply to the pleadings of the petitioner and prayer was granted. The review applicant has filed the counter affidavit.
8. I have perused the counter affidavit and considered the submissions of the counsel for both the parties.
9. Main thrust in the counter affidavit is to the following effect :
“2. That the writ petition aforementioned has been filed by the petitioners seeking
