Raosaheb Kerba Kadam v. Anil Kerba Kadam and others
Case Details
2024:BHC-AUG:3487 1 ra 33.24 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD REVIEW APPLICATION NO. 33 OF 2024 IN WRIT PETITION NO. 10012 OF 2022 Raosaheb Kerba Kadam .. Applicant Versus Anil Kerba Kadam and others .. Respondents
Legal Reasoning
Ms. M. S. Mhase, Advocate i/by Lex Aquila, Advocate for the Applicant. Shri G. A. Kulkarni, A.G.P. for the Respondent Nos. 3 and 4. CORAM : SHAILESH P. BRAHME, J. DATE : 16TH FEBRUARY, 2024. FINAL ORDER : . Heard the learned counsel for the applicant. 2. By this review application, judgment and order dated 12.01.2024 is sought to be recalled. Writ Petition No. 10012 of 2022 was filed by the respondent Nos. 1 and 2 against the order dated 07.07.2022 passed below Exhibit 37 by the 04th Joint Civil Judge Senior Division, Osmanabad in L. A. R. No. 20 of 2018 thereby rejecting application of the respondents U/O I Rule 10 of the Code of Civil Procedure. It is a matter of record that present
Decision
applicant had filed affidavit in reply in the writ petition. The documents from page Nos. 94 to 102 of the compilation of review application were not before the Court, neither there was reference of these documents in the affidavit in reply filed by the applicant. 2 ra 33.24 3. The learned counsel for the applicant would submit that ground Nos. III, IV and V of the memo of review application would constitute mistake apparent on the face of the record to entertain the review application. She would submit that land reference was in fact only inwarded in the name of Kerba Babaji Kadam. In view of compromise decree and consent deed dated 28.07.2006, memo of land acquisition reference in the name of Raosaheb Kerba Kadam was filed in the reference Court. There was as such reference in the exclusive name of the applicant. According to her, the respondent Nos. 1 and 2 would be having no right, title and interest in the subject matter after demise of their father Kerba. The respondents’ application Exhibit 37 seeking impleadment as a necessary party was not maintainable. 4. The learned counsel would invite my attention to the findings recorded in paragraph Nos. 15 and 16 of the judgment under review to buttress that it was the proceeding of the applicant before the reference Court and, therefore, it would be an error on the face of record to record to castigate the conduct of the applicant. According to her this aspect of the matter goes to the root of the matter and constitute a good ground to recall the judgment. 5. She would further submit that Ground No. VIII of the memo of the review application would constitute the explanation why these facts were not disclosed. These are the undisputed 3 ra 33.24 facts and, therefore, need to be considered in review jurisdiction of this Court, though they were not placed before this Court while deciding the Writ Petition No. 10012 of 2022. 6. This application for review is founded on the documents which are being filed for the first time in the High Court. Memo of L.A.R. No. 20 of 2018 showing applicant as claimant (page No. 94 to 99), order dated 21.02.2018 of Principal District Judge, Osmanabad (page No. 100) and consent letter dated 28.07.2006 (page No. 101 and 102) were not before this Court when the writ petition was finally decided. Affidavit in reply was filed by the applicant in the writ petition. It’s paragraph No. 2 reads as follows : “2. I say and submit that, the petitioners and respondent no. 1 are the real brothers and the legal hairs of the Kerba Babaji Kadam. The land Gat no. 90 admeasuring 4H 11R and 92 admeasuring 0H 48R land is acquired by the respondents for the purpose of submergens of minor irrigation tanks and On pipeline of Hungarga (Nal) and Jalkot. 22.12.2005 the father of respondent no. 1 had filed reference petition for enhancement of the compensation amount. During the pendency of the reference petition father of respondent no. 1 died on 17.01.2008 and thereafter on 30.02.2022 the petitioner filed the application at Exh. 37 for adding necessary party before reference court under O. 1 R. 10 of CPC.” 7. Besides that order dated 07.07.2022, which was under challenge in the writ petition refers as follows : 4 ra 33.24 - eqG vtZnkj jkolkgsc dsjck dne ;kauh izLrwr izdj.k gs laiknhr >kysY;k tehuhpk ekostk okVwu feG.;kdjhrk nk[ky dsyk vkgs- ekSts tGdksV] rk- rqGtkiwj] ft- mLekukckn ;sFkhy tehu xV dza- •Œ o • e/khy {ks=k vuqdzes gs- vkj o ” vkj gh laiknhr >kyh vkgs- R;kuqlkj fnukad Œ’--••“ jksth Hkwlaiknu vf/kfu;ekP;k dye vUo;s laiknhr tehu gh dsjck ckckth dne ;kaP;k ekydh o dCtsoghokVhph gksrh- R;keqGs Hkwlaiknukpk laiw.kZ ekostk dsjck ckckth dne ;kaP;k ukos >kyk- dsjck ckckth dsne ;kauh laiknhr tehuhpk ok<ho ekostk feG.;kdjhrk fnukad -- ŒŒ ‘ jksth ftYgkf/kdkjh] mLekukckn ;kaP;kdMs vtZ lknj dsyk- 8. While deciding writ petition this Court took in to account memo of land reference which is at Exhibit – C (page 85) indicating Kerba Babaji Kadam as a claimant. At the conclusion of the memo there appears to be signature of Kerba Babaji Kadam. 9. In view of the documents produced on record and the representation made by the applicant, this Court recorded findings in paragraph Nos. 15 and 16. The ground for review which is sought to be pressed into service is based upon the facts which were neither pleaded, nor argued when the writ petition was decided by the judgment under review. I do not find merit in the submissions of the learned counsel. 5 ra 33.24 10. Whether land acquisition reference was initially inwarded by deceased Kerba and lateron memo of reference was filed by the applicant as a claimant are disputed questions of facts, which can be gone into either by the Reference Court or in appropriate proceedings. 11. The applicant has made an endeavour to spell out explanation in ground No. VIII of the review application for not agitating factual matrix in time. 12. The documents which are tried to be relied upon for the first time cannot be said to be new invention or discovery. The plea which is sought to be raised for the first time was available to be raised either in the trial Court or when the writ petition was decided by the judgment under question. I do not find any merit in the explanation so tendered by the applicant. 13. For the reasons stated above, there is no merit in the application for review. The review application is rejected. bsb/Feb. 24 [ SHAILESH P. BRAHME, J. ]