REVIEW UNDER SECTION 114 READ WITH ORDER 4f RULE 1 OF CPC v. Smt. Kadeera Bee

APPLICATION UNDER SECTION 114 READ WITH ORDER 47 RULE 1 QF THE CODE OF CIVIL PROCEDURE FOR REVIEW OF ORDER DATED --^: _ - - _ 6.02.2006 PASSED IN FIRST APPEAL N0.1^4/2005 BY THE HON»BLECOURT —^^— r XI-HC-78 3'^T ^ll^ld^, ^Tfl^4!^, f®<dl<My ^l^dl sb*<lcb t*****~*4***«**^*>****^ 200 3ll^l ^5|c»i (^fg^^) 3T1^T^)Tf^TW (T§Tr3n^T$h^l<=b ^<TRR:^cf3TI^T ^l obi^I<n4)'i ^i^<nT^'teu^l'<Ri<^i< ^3Tf^T3:TT^T &IVISION BENCH: - ^r HON'BLE MR. L.C. BHADOO HON'BLE MR. DHIRENDRA MlSHM. JJ. AND 28-6-2006 Shri K.A. Ansari, 5r. ^ Jdvocate with Shri R.L. Bajpai/ Advocate for the applicant. Heardon M.C.P. No."; 7941/06 for condonation of deby in filing the review petition against (udgment of this Court dated 6.2.2006 whereby first appeal |)y non-applicants No.l &, 2 herein was allowed and the trial court wa^ directed to proceedwith the suit. As per office report ^here is delay of 32 days in fiiing the review petition, whereas, in 14 has been mentioned that there ^e application fqr^con^onatifiCLof deiay it is delay of 30 days. The grounds taken in th |is application for condoning the deioY are that the applicant herein has Imet with a serious accident on i.10.2003 and in that accident the a| Ipiicant sustained grievous injuries, his treatment is contipuing and fr fom 15.2.2006 to 23.4.2006 the applicant was on bed reset due to me |jical problems created in the month of January, 2006. Affidavit in si Ipport of liiisapplicationhasbeenfiied. We do not find any sub^stanc^jn this application/for the reason that in the first instance as p< ^r officereportdelayinfiiingthe review petition is of 32 days/where as/in the application condonation of 30 XI-HC-78 3'^r ^iiqid^, ^Td^'i?, [s«ni^y *11+1(<11 Sl»*11<sh ^200 ^rq^?!^ W^T^T^Jch cT^T3TT^Tst)^IGh ^TTW^cTW^T <=bi^f<n<f)Ti ^i^<rtT^tec^'<Ri«i< ^3Tf^T3TT^T —2. days delay has been prayed fo f. As far as other ground is concerned, even if the applicant was a<pvised for bed rest, ( it has not been mentioned that there were no] other famity members who can contact the advocate and file the revl ew petition. Moreover, theadyocate of the applicant herein was presei^t on 6.2,2006 whenthejud9ment under review was passed and as p^ r this application, the application for certified copy of judgment Iwas filed on 7.2.2006 and same was obtdned on 22.2.2006, where was the difficulty in filing the review. The person who obtainejd the certified copy couid have fited the '^ petition for review after consi|lting wi1+i the advocate dnd as such, the applicant has not been able to ^how reasonable cause for condonation of delay. Accordingly, the applicat|on for condonation of delay is rejected. Even otherwise/on mer |t also we do not find any substoince in th is review petition. For reviev^ of judgment under Order 47 Ruie 1 of CPC powers vested with the Court are that the Court is entitle to review its order/judgment on <|iccount of some mistake/error apparent on the face of the record, or| for any other reason, which does not postulate the rehearing of the| dispute. "nie Hon'ble Apex Gourt in the matte r of Meera Bhanja V. Sijpmala Kumari Choudhary reported in 1995 (1) SCC 170 held thaj 11 It isweli settled that the review proceedings dre not by way of an appeat and have to be strictly confined to the scope and amb it of Order 47 ftule 1 CPC." The review XI-HC-78 3^ ^l^lcrt^, ^Tfl^^Ko, ^^l^^< *<l*1dl Sti+licft ^ 200 ^i ^5<cb (^i^^T) W^TcRT^TW cT^T3TT^T5h^l<^ ^TTW^f^TW^T ^ chl^f^41T1 ^IH^lT^te^^^K ^3Tf^R'3TT^T \ -^ of a judgment or an order c ^uid be sought: (a) from the discovery of new and important matters o evidence which after the exercise of due diiigence was not within th^ e knowledge of the applicant; (b) such important matter or evidenc^ could not be produced by the applicant at the timewhen the decree wa^ passed or order made; and (c) on account of some mistake or ©rrora^parent on the face of the record or any other sufficient reason'. In the present case, jijdgment dated 6.2.2006 was passed on the basis that Jearned triat coij irt white allowing the appiication of defendants fiied under Clauj ;e (d) of Rule 11 Order 7 of the CPC and rejecting the p laint ought to have considered the contents of the plaint only. Same judgment was passed after hearing the counsef respective parties and the pourt observed that the impugned order passed by the trial Court is (trima-fdcie perverse, The Court below has dismissed the suit of the piantiff by hotding that the suit is barred by !aw of jimitation. In paragrjiph 8 of 1+ie impugned order jt has been mentioned that the plaintif^ has not pleaded as to on what dote she learnt about the impugned ju jgments and there is no pleading regarding new cause of action. In the | aforesaid circumstonces, it woutd be held that the appiiccint had the krtowfedge of Judgment and^^ 9-86 & 31-3-98 on the resp^ctive dates. The above reoisoning pf the Court beiow is contrary to ^he pleadings of the plaintiff. Thus/the INP XI-HC-78 3^ ^liqidq, ^TO<M^<o, R<ni^y ^l^dl sb*<|cb ********************* ^ 200 3T(^T^T5ra? 3TI^T^Tf^TW cTSTT3TI^?T$h^I<=h 5^TT^K^f?cf3T^?T 4)i<4ld4)^ ^i^^T^:tel^'<Rt«i< ^3Tf^T3TT^T plaintiff in paragraph 12 of ^he plaint has pleaded that he teamt about .,-lf ."- the Judgment and decree onl| after inspection of record of those case^ -'A+ in December, 2002, as the aforesaid objection was taken by defendant No.l jn the written statemel^ it fiied in Civil Suit No.63-A/2000 'm Court of 3 Civil Judge, Cla^ |s-I and the cause of action a9ain arose to the pbintiff within the pecpniary territorial Jurisdiction of 1+ie trial Court after 24-4-2003 and <|> |>n 30-4-2003 when defendant No.l applied for permission before the Corporation for constmction over disputed piot after demolis|iing the marked portion of construction. Thus, from over atl reading of the plaint, it Gannot be said that the plaintiff did not have cause ^f action afresh for filing the sub^equent suit. It is settled iaw that while considering the provisions of Chuse (d) of Ruiell of Order 7 of fhe C.P.C. the Court is required to look into ^6 the facts mentioned in the t laint on ty cxnd in the p iaint/ in paraaut2, it has been mentioned that thel Ijudgment and decree dated 6-9-86 passed in civit suit No.8<M>A/79 and j^ ^dgment and decree dated 31-3M-98 pas^ed in civil suit No<l<-A/97 wer^ obtained by committing fraud, sumrnons were never served on the pl l|aintiff and, therefore, those decrees are not binding on the plaintiff. The p iaintiff came to Know about those decrees when counsei for i|he plaintiff inspected those files in t^ month of December, 2002| after fifing the written statement on 23-10-200t on behalf of res ^ondent No.l in the earlier ^uit. In paraBM21 ^. XI-HC-78 3:5? •^1<41C(^, yTn«'1<l<o, fslOK-l^ ^l^dl sb*4|cb ^[200 3ll^l ^5|cb (l^¥3^^) 3TI^T^)T^i<t) cT8Tr3TT^Tsh'^i<+) ^RTTW ^ri?cT W^T <=bi^f<n41'i ^i^<nT^te^<Ri<^i< ^3ri^T3TT^T of the pbint, it has been mentibned that cause of action arose on 1 24-4-2003 and 30-4-2003 when ^ie pbintiff withdrew the earlier suit and thereafter filed this suit. Fbr the purpose of limitation whether the instantsuit filed bytheplain| riff is within time or not the date of fiiing of the earlier suit NoJ63-A/2000 cannot be taken into Noj63 consideration for the reason t!' •h0|t the said suit was filed simply for declaration and injunction againsj the respondent No.l herein. The present suit has been filed with Dhe averments that ptaintiff No.l had no knowledge about the judgment ^ind decree dated 6-9-86 and 31-3-98 obtained by respondent No.l herei^ in civi! suits No.8-A/79 and l-A/97. In view of the above facts, ^ve are of the considered opinion that in the judgment dated 6.2.2006| review of which has been sought, there is no error apparent on tl^e face of the record and no new <& important matfer or evidence wh ic|h after the exercise of clue diligence was not within the knowledge of applicant is sought to be adduced, which requires review of judgment passed by this Court. Therefore, the application for r4view is dismissed on the ground of 1 deby as well as on merit. Con^quently, I.A. Nos.2 1554/06 <& 1555/06 also stand d isposed |of. Sd/- L.C. Bhadoo Judge ^ ^^ ^ ^ Sd/- Dhirendra Mishra Judge