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2012(1) JLJ 187
Shantanu Kemkar and Prakash Shrivastava, JJ.
Mohammed Shafi v. Abdul Wahid (deceased) through LRs
Review Petition No.15 of 2011 (Indore) : against the judgment and decree dated 24.11.2010, passed in Second Appeal No.1307 of 2005; Decided on 22.9.2011.
Held : We find substance in the argument of the counsel for the petitioner that there was no reason for the counsel to make such a concession in favour of the respondent and that some misconception or misunderstanding had occurred at the time of hearing of the appeal, resulting into recording of such a concession.
[Para 14
Since the aforesaid analysis indicates that either no such concession was made by counsel for petitioner or such a concession was recorded under some misconception and that the said concession was not on the basis of the instructions of the client and it was improbable to make such a concession considering the circumstances of the case.
From the perusal of the cause list dated 24.11.2010, we have also noticed that on that date the second appeal was listed in motion hearing for further orders. It was not listed for final hearing, therefore, counsel for the petitioner is justified in his submission that the counsel appearing in the matter was not prepared on merit and was seeking adjournment to obtain instructions.
The finding of landlord tenant relationship has been recorded on the basis of the concession made by the counsel for petitioner. The said concession was not even supported by the instructions of the petitioner since in the uncontroverted affidavit, the Advocate has stated that his client was not present in the Court on that day.
[Para 17
Thus, in view of the aforesaid analysis, we find that there is error apparent on the face of the record and sufficient reason exists for reviewing the judgment passed in second appeal. Such a review is necessary keeping in view the doctrine of "actus curiae neminem gravabit". (2005)4 SCC 741, (2006)6 SCC 224, (1998)2 SCC 523, (1995)5 SCC 751, (1991)4 SCC 195, (1996)10 SCC 574, (2009)13 SCC 131, (1998)6 SCC 507 and 1995 (Supp.)2 SCC 539 discussed.
[Para 22
(2) Civil P.C., 1908 -- O.23 R.3 -- agreement between counsel for the parties -- does not fall within lawful agreement for the parties. [Para 21
¼1½ flfoy izfdz;k lafgrk] 1908 && vk- 47 fu-1 && iqufoZyksdu ds fy, vk/kkj && dkmUlsy ds vuqeksnu ds vk/kkj ij vkns‘k ikfjr && dkmUlsy ds ‘kiFki= }kjk ,slk vuqkensu fn, tkus ls badkj fd;k x;k && [kaMu esa dksbZ ‘kiFki= ugha && izdj.k vafre lquokbZ ds fy, lwphc) ugha Fkk && funsZ‘k izkIr djus dks LFkxu ds fy;s izkFkZuk dh xbZ Fkh && ,slk vuqeksnu djuk vlaHkkfor Fkk && iqufoZyksdu ds fy, ;g i;kZIr vk/kkj gSA
vfHkfu/kkZfjr % ;kph ds dkmUlsy ds rdZ esa ge lkj ikrs gS fd izR;FkhZ ds i{k esa ,slk vuqeksnu djus ds fy;s dksbZ dkj.k ugha Fkk rFkk vihy dh lquokbZ ds le; Hkze ;k dqN dk dqN le>uk ?kfVr gqvk] tks ,slk vuqeksnu vfHkfyf[kr djus dk ifj.kke gSA
pwafd mi;qZDr fo‘ys"k.k bafxr djrk gS fd ;k rks ;kph ds dkmUlsy }kjk ,slk vuqeksnu fd;k gh ugha x;k Fkk ,slk vuqeksnu dqN dk dqN le>dj vfHkfyf[kr fd;k x;k Fkk rFkk dfFkr vuqeksnu i{kdkj ds funsZ‘kksa ij ugha Fkk rFkk izdj.k dh ifjfLFkfr;ksa ij fopkj djus ij ,slk vuqeksnu fd;k tkuk vlaHkkfor FkkA
okn lwph fnukad 24-11-2010 ds voyksdu ls Hkh geus /;ku fd;k gS fd ml rkjh[k dks f}rh; vihy vU; vkns‘k ds fy, lekosnu dh lquokbZ esa lwphc) FkhA ;g vafre lquokbZ ds fy, lwphc) ugha Fkh] blfy,] ;kph ds dkmUlsy dk fuosnu djuk U;k;kuqer gS fd ekeys esa mifLFkr dkmUlsy xq.kkxq.k ij rS;kj ugha Fkk rFkk funsZ‘k izkIr djus ds fy;s LFkxu pkg jgk FkkA
Hkw&Lokeh vfHk/kkjh ds laca/k dk fu"d"kZ ;kph ds dkmUlsy ds vuqeksnu ds vk/kkj ij vfHkfyf[kr fd;k x;k gSA v[kafMr ‘kiFki= ds ckn ls dfFkr vuqeksnu ;kph ds funsZ‘kksa }kjk lefFkZr Hkh ugha gS] vf/koDrk us dFku fd;k gS fd mldk i{kdkj ml fnu U;k;ky; esa mifLFkr ugha FkkA
bl izdkj mi;qZDr fo‘ys"k.k ds n`f"Vdks.k ls] ge ikrs gSa fd vfHkys[k ls izdV =qfV gS rFkk f}rh; vihy esa ikfjr fu.kZ; dk iqufoZyksdu djus ds fy, i;kZIr vk/kkj gSA ,slk iqufoZyksdu ^^U;k;ky; ds dk;Z ls fdlh dh gkfu ugha gksrh** ds fl)kar ds n`f"Vdks.k ls vko‘;d gSA ¼2005½ 4 ,l lh lh 741] ¼2006½ 6 ,l lh lh 224] ¼1998½ 2 ,l lh lh 523] ¼1995½ 5 ,l lh lh 751] ¼1991½ 4 ,l lh lh 195] ¼1996½ 10 ,l lh lh 574] ¼2009½ 13 ,l lh lh 131] ¼1998½ 6 ,l lh lh 507 rFkk 1995 ¼lIyh-½ 2 ,l lh lh 539 foosfprA ¼iSjk 22
¼2½ flfoy izfdz;k lafgrk] 1908 && vk-23 fu-3 && i{kdkjksa ds fy, dkmUlsy ds e/; djkj && i{kdkjksa ds fy, fof/kiw.kZ djkj ds varxZr ugha vkrkA ¼iSjk 21
1. This review petition under Order 47 rule 1 read with section 151 of the CPC is directed against the judgment dated 24th November, 2010 passed in Second Appeal No.1307/2005.
2. In brief, the review petitioner was defendant in Civil Suit No.164-A/2002 filed by the respondent seeking eviction from the tenanted premises under the provisions of M.P. Accommodation Control Act, 1961. The suit was opposed by the petitioner inter alia on the ground that no landlord tenant relationship exist and he was the owner of the suit premises. The trial Court had decreed the suit on the ground of denial of title. The first appellate Court had allowed the appeal and dismissed the suit on the ground that the relationship of landlord tenant was not established. The Second Appeal No.1307/2005 has been allowed by the learned Single Judge recording concession of the counsel for petitioner and granting time to the petitioner to vacate the suit premises. In view of the fact that the learned Single Judge who had passed the said judgment has demitted the office, the present review petition is placed before the DB in terms of rule 13(1)(b)(ii)(1) of Chapter IV of the High Court of M.P. Rules, 2008.
3. Learned counsel for the petitioner submits that this Court has wrongly recorded the concession of the counsel for petitioner, though no such concession was given by him as is apparent from his affidavits. He further submitted that the circumstances of the case also demonstrated that there was no occasion to give such a concession. He has further submitted that the matter was not listed for final hearing, yet it was heard finally and that the judgment in the second appeal is not in accordance with section 100 of the CPC and Order 23 rule 3 CPC. He further submitted that the factual finding cannot be recorded on the basis of concession and that the undertaking given by the petitioner in pursuance to the judgment in second appeal would not affect his right to pursue the review petition.
4. Learned counsel for respondents, opposing the review petition, submitted that the present matter does not fall within the scope of the review jurisdiction and that concession given by the counsel on the question of fact is binding. He has also referred to the undertaking given by the petitioner before the trial Court for vacating the suit premises.
5. We have heard the learned counsel for parties and perused the record.
6. Before proceeding in the matter, it would be relevant to take note of the scope of the review jurisdiction under Order 47 rule 1 of the CPC. The Supreme Court in the matter of Board of Control for Cricket in India v. Netaji Cricket Club, reported in (2005)4 SCC 741, has held that the review is also maintainable if it is necessitated on account of some mistake or anyother sufficient reason and that the words “sufficient reason” are wide enough to include misconception of fact or law by a Court or even an Advocate. The Supreme Court has held thus :
“89. Order 47 rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
90. Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words “sufficient reason” in Order 47 rule 1 of the Code are wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be necessitated by way of involving the doctrine “actus curiae neminem gravabit.”
7. In the matter of Lily Thomas v. Union of India, reported in
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