The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RVWPET NO. 184 OF 2025 From the judgment dated 16.05.2025 passed by a coordinate Bench of this Court in RSA No. 486 of 2017. Rameshlal Sahu …. Petitioner -Versus- Balwant Singh Gandhi (dead) through LRs. & others …. Opp. Parties Advocates appeared in this case: For Petitioner : M/s. T.K. Mishra, S. Sarangi, S.K. Sarangi & A.K. Nayak, Advocates For Opp. Parties: None CORAM:
Legal Reasoning
THE HON’BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD J U D G M E N T ---------------------------------------------------------------------------------- Date of hearing & judgment : 10.09.2025 ---------------------------------------------------------------------------------- Page 1 of 8 PER DIXIT KRISHNA SHRIPAD,J. By means of this petition, the petitioner seeks review of the judgment dated 16.05.2025 passed by a Coordinate Bench of this Court in his RSA No. 486 of 2017. 2. Brief fact matrix: (a) The opposite parties in the review petition had filed Civil Suit No.79 of 2011 inter alia seeking a decree of declaration that review petitioner’s sale deed dated 25.02.2009 was null & void and for other consequential reliefs. The review petitioner had filed his counterclaim seeking a decree of declaration against said plaintiffs that their sale deed dated 27.04.1968 was null & void, so that his own sale deed would be saved. Opposite parties’ suit came to be decreed vide judgment & decree dated 25.08.2015/31.08.2015. The counter claim was negatived and thus, the review petitioner lost his sale deed. Page 2 of 8 (b) The review petitioner had filed RFA No.7/30 of 2015-2016 that came to be dismissed by the learned Additional District Judge, Nuapada vide judgment & order dated 28.11.2017. This was put in challenge in RSA No.486 of 2017 and a learned Coordinate Judge of this Court vide order dated 16.05.2025 negatived the same. The matter was carried forward to the Apex Court in SLP (C) No.17411 of 2025 and that too was rejected vide order dated 18.07.2025. Now, the petitioner seeks review of the judgment & order passed by the Coordinate Judge, whereby his second appeal was dismissed. 3. Learned counsel for the petitioner submits that the judgment & order now put in review were rendered without bringing LRs of the deceased-defendant no.7. He, in all fairness, submits that there is no material to show as to when the death of said defendant No.7 occurred or its cause. Therefore, such a contention that is not taken Page 3 of 8 up in the review petition but is urged through an application filed under Order I Rule 10 of CPC, cannot be examined. 4. Learned counsel for the petitioner vehemently argues that the suit of the plaintiffs, who are opposite parties herein, was hopelessly barred by limitation and to that effect, the contention was taken up in the written statement-cum-counter claim, which aspect has not been correctly considered. He further submits that this aspect has remained unconsidered even by the Coordinate Bench and therefore, review needs to be favoured. He, in all fairness, concedes that the question of limitation was not urged in the grounds of RSA nor any substantial question of law concerning the same was framed, either. 5. The Memorandum of Appeal reflects only two substantial questions of law, which the review petitioner had framed for Page 4 of 8 consideration at the hands of the Coordinate Bench in the subject Second Appeal and they are as follows:- “A. Whether both the Courts below were justified in decreeing the plaintiff’s suit ignoring the equitable right of the appellant of his being a bona fide purchaser for value without knowledge/notice of the previous transaction in respect of the suit land? B. Whether by not acting upon the alleged sale deed dated 27.04.1968 by not entering possession by not paying rent at all, by not getting the land recorded in his name and by not claiming the Land Acquisition Compensation amount etc. the plaintiff acquiesced the title of his vendor fortified through adverse possession inuring to the benefit of the appellant?” The proviso to Section 100 of CPC is vociferously pressed into service saying that even when the parties had not framed substantial questions of law, the Coordinate Bench itself ought to have framed one relating to limitation. This is too farfetched a submission, inasmuch as existence of power is one thing and its exercise is another. Merely because there is power, Court cannot Page 5 of 8 wield it in the absence of fact matrix that attracts the said provision. 6. Learned counsel for the petitioner, drawing attention of the Court to Section 65 (c) of the Indian Evidence Act, 1872, points out that the judgment & order of the Coordinate Bench now put in review have not properly adverted to the same and that being an error apparent on the face of the record, this Court should grant interference in review jurisdiction. This contention does not merit deeper examination, inasmuch as a Second Appeal lies only on the substantial question of law and the matter relating to evidence ordinarily is a question of fact, says Salmond in his Jurisprudence (12th Edn.) as under: “The term question of law is used in three distinct though related senses. It means, in the first place, a question which the court is bound to answer in accordance with a rule of law—a question which the law itself has authoritatively answered, to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what Page 6 of 8 is considered to be the truth and justice of the matter. All other questions are questions of fact—using the term fact in its widest possible sense to include everything that is not law. In this sense, every question which has not been predetermined and authoritatively answered by the law is a question of fact— whether it is, or is not, one of fact in any narrower sense which may be possessed by that term.” 7. Learned counsel for the petitioner vehemently contended that the subject suit of the opposite parties was hopelessly time barred and this aspect of the matter having not been duly adverted to by the trial court, First Appellate Court & the Coordinate Bench, there is error apparent on the face of the record warranting interferences of this Court. He also brought to the notice of Court the mandate enacted in Section 3 of the Limitation Act, 1963 to the effect that regardless of the contentions in the pleadings, every court is bound to negative the proceeding, if barred by limitation. Apparently, no issue was raised in the courts below. Nothing prevented the petitioner to seek framing of additional issue by moving an application under Order XIV Rule 5 of CPC. As already mentioned, no substantial question of law was raised in relation to limitation. Added, the matter of limitation is a mixed question of law & facts. Therefore, this contention too falls to the ground. Page 7 of 8 In the above circumstances, review petition, being thoroughly devoid of merit, is liable to be dismissed and accordingly it is. Registry to send a copy of this orderto the opposite parties by speed post immediately for their file. Web copy of the judgment to be acted upon by all concerned. Dixit Krishna Shripad Judge Orissa High Court, Cuttack The 10th September, 2025/Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 15-Sep-2025 13:14:27 Page 8 of 8