Shashikalabai Janardhan Indapure v. Bhimabai Sampat Jadhav

ca-2081-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL APPLICATION NO.2081 OF 2024INREVIEW APPLICATION (STAMP) 2548 OF 2024INSECOND APPEAL NO.46 OF 2021Shashikalabai Janardhan Indapure.. ApplicantVersus1.Bhimabai Sampat Jadhav2.Vinayak Bhavanibuwa Mate3.Laxman Pratilba Bhade (Since Deceased)3A]Rukhmanbai Laxman Bhade3B]Appasaheb Laxman Bhade4.Shantabai Baburao Bhosale5.Aasha Murlidhar Salve6.Uttam Shripati Bhade (Since deceased)Through his LR’s6A]Laxmibai Uttam Bhade6B]Kum. Meena Uttam Bhade6C]Suresh Uttam Bhade6D]Suryakalabai Uttam Bhade6E]Sandeep Uttam Bhade6F]Hirabai Uttam Bhade7.Nanabai Sahebrao Gadekar(Since deceased)Through her LR’s.7A]Suresh Sahebrao Gadekar7B]Jaya Bapu Shejul7C]Pooja Ganesh Gaike7D]Ganesh Sahebrao Gadekar .. Respondents[1] ca-2081-2024.odt…Mr. A. R. Syed, Advocate for the applicant.Mr. A. S. Bajaj, Advocate for respondent No.1.Mr. Shivaji M. Nawale and Associates for respondent Nos.3A and 3B. (Absent).... CORAM : SMT. VIBHA KANKANWADI, J. RESERVED ON : 10 APRIL 2026 PRONOUNCED ON : 04 MAY 2026ORDER :-.Heard Learned Advocate Mr. A. R. Syed for the applicant and learnedAdvocate Mr. A. S. Bajaj for respondent No.1. Learned Advocate forrespondent Nos.3A and 3B is absent. Respondent Nos.6A to 6F, 7A to 7D areserved. 2.Present application has been filed for condoning the delay of 765 daysin filing review application by the original appellant No.2 in Second AppealNo.46 of 2021. Second Appeal No.46 of 2021 was filed to challenge thejudgment in Regular Civil Suit No.230 of 1999 passed by learned Joint CivilJudge Junior Division, Gangapur, District Aurangabad dated 24.03.2008.Present applicant was the original defendant No.2 and the suit was filed fordeclaration, perpetual injunction and possession. It came to be partlydecreed. The present applicant along with other defendants filed RegularCivil Appeal No.113 of 2012. Learned District Judge-1, Vaijapur, DistrictAurangabad dismissed the appeal that was filed by the applicant and other[2] ca-2081-2024.odtdefendants and then cross objections filed by respondent No.1 therein i.e.original plaintiff was allowed, thereby the entire suit was decreed. Originaldefendant Nos.1 to 3 then challenged both the decrees in the Second Appeal,however, in the meantime, original defendant Nos.1 and 3 had expired,therefore, their legal heirs were brought on record. 3.Learned Advocate for the applicant submits that the Second Appealwas preferred within limitation. It was listed for admission on 04.02.2021.This Court had granted ad-interim stay to the judgment and decree of thelower courts and the notices were issued. The other defendants were thebrothers of the applicant. The applicant had not made any inquiry withthem, as the husband of the applicant used to look after the litigation. Theapplicant being illiterate was kept in dark. Her husband used to say that theproceedings are pending. Unfortunately, the husband of the applicant diedon 27.01.2023. Thereafter, when applicant tried to secure the status of theproceedings from the legal heirs of her brother, they had given evasiveanswers. Somehow, she could contact the lawyer in the month of December2023 and thereafter, came to know that upon the instructions, learnedAdvocate then representing the appellant had made a statement that theywant to withdraw the appeal. In fact, the applicant had not given anyinstructions for the withdrawal of the appeal to the concerned lawyer and,therefore, in a way fraud has been played upon the court. Written[3] ca-2081-2024.odtinstructions were not placed on record and, therefore, the said order dated28.11.2021 passed by this Court needs to be withdrawn.4.Notices were issued and respondent No.1/original plaintiff appearedthrough Advocate. Respondent No.1 has filed affidavit-in-reply and submitsthat the review application along with application for condonation of delayhave been filed with ulterior motive. The applicant wants to takedisadvantage of her own illiteracy and the fact of death of her husband.Instructions were given by the appellant to the Advocate for withdrawal ofthe second appeal, as a result of which the second appeal came to bewithdrawn. After the disposal of the second appeal, he made an applicationseeking permission for sale before the concerned authorities, which wassubsequently granted, and thereafter, he sold the land by a registered saledeed dated 11.02.2022. The present application is nothing but an attempt toharass respondent No.1.5.Both the learned Advocates appearing for the applicant as well asrespondent No.1 reiterated the same facts. Learned Advocate for theapplicant tried to harp upon the statement made before this Court that therewas a settlement between the parties, however, no document in supportthereof was produced, and the applicant was not a party to the allegedsettlement. When respondent Nos.6 and 7 have played fraud on the Court[4] ca-2081-2024.odtby misinforming the Advocate and thereby withdrawing the second appealand since the present applicant has not been given the fruits of thesettlement, such settlement is not binding upon her.6.Here, in this case, two aspects are required to be noted that the delayis huge i.e. 765 days and to explain the same, the applicant has stated thatsince her husband was looking after the litigation and she being illiterate,had not paid attention. She was kept informed by her husband that theproceedings are pending. Now, her husband is no more. Therefore, there isno mechanism available to confirm with the said fact. The husband of theapplicant expired on 27.01.2023. The Second Appeal stood withdrawn byorder dated 18.11.2021. Therefore, at least from 18.11.2021 till 26.01.2023,the husband of the applicant was having knowledge about the withdrawal ofthe appeal. When implied authority had been given by the applicant to herhusband to look after the litigation, the applicant cannot now be permittedto take advantage of the situation arising from the death of her husband,unless there is concrete evidence to support her case. Every litigant isexpected to be diligent and should update his or her information regardingthe pending litigation. If we peruse the order dated 18.11.2021, it can beseen that learned Advocate appearing for the appellant had made statementthat his clients i.e. the appellants had informed him that they have settledthe matter out of Court and, therefore, they sought the withdrawal of the[5] ca-2081-2024.odtappeal. Now, which kind of settlement was agreed, that too out of Court,could not have been asked by this Court, provided the parties were satisfiedwith the out of Court settlement. Certainly, when a party appears before theCourt, it is expected that all the applications should be brought on recordand there should be a seal of the Court to the said settlement. But it dependsupon the parties. If they are satisfied with an out of Court settlement, thesame can be said to be permissible i.e. in view of the oral contract betweenthem. The Court cannot insist upon submitting of the settlement in writingbefore it. This Court with the limited scope in the application as well as inthe review petition cannot go into the aspect as to whether the act on thepart of the other appellants while instructing the Advocate regardingsettlement and withdrawal amounts to fraud or not. The review powers ofthis Court are in a way limited and cannot go beyond the facts those wereavailable on the face of record with it. 7.I would like to take into consideration the parameters which arerequired to be considered for a Review Petition. For that purpose, I wouldlike to rely on the following decisions :-7.1In Vinay Sharma and another vs. State (NCT of Delhi) and others,[(2018) 8 SCC 186], it has been observed that :-“Power of review cannot be confused with appellate power whichenables a superior Court to correct all errors committed by a[6] ca-2081-2024.odtsubordinate Court. A repetition of old and overruled argument is notenough to reopen concluded adjudications.”7.2Further, in Thungabhadra Industries Ltd. vs. Government of A.P. [AIR1964 SC 1372] (Three Judges Bench) it has been observed that -“A review is by no means an appeal in disguise whereby an erroneousdecision is reheard and corrected, but lies only for patent error. We donot consider that this furnishes a suitable occasion for dealing with thisdifference exhaustively or in any great detail, but it would suffice forus to say that where without any elaborate argument one could pointout to the error and say here is a substantial point of law which staresone in the face, and there could reasonably be no two opinions,entertained about it, a clear case of error apparent on the face of therecord would be made out.”7.3Further, in Parison Devi vs. Sumitri Devi, [(1997) 8 SCC 715] it hasbeen observed that -“An error which is not self-evident and has to be detected by a processof reasoning, can hardly be said to be an error apparent on the face ofthe record justifying the court to exercise its power of review underOrder 47 Rule 1 CPC. …. A review petition, it must be rememberedhas a limited purpose and cannot be allowed to be ‘an appeal indisguise.”7.4Same ratio has been reiterated in Vikram Singh @ Vicky Walia andanother vs. State of Punjab and another [(2017) 8 SCC 518], wherein it hasbeen observed that “Review cannot be made on those grounds which werealready urged during appeal.”7.5Further, in State of West Bengal and others vs. Kamal Sengupta andanother [(2008) 8 SCC 612] it has been held thus -[7] ca-2081-2024.odt"21. At this stage, it is apposite to observe that where a review issought on the ground of discovery of new matter or evidence, suchmatter or evidence must be relevant and must be of such a characterthat if the same had been produced, it might have altered thejudgment. In other words, mere discovery of new or important matteror evidence is not sufficient ground for review ex debito justitiae. Notonly this, the party seeking review has also to show that suchadditional matter or evidence was not within its knowledge and evenafter the exercise of due diligence, the same could not be producedbefore the court earlier.22. The term "mistake or error apparent" by its very connotationsignifies an error which is evident per se from the record of the caseand does not require detailed examination, scrutiny and elucidationeither of the facts or the legal position. If an error is not self evidentand detection thereof requires long debate and process of reasoning, itcannot be treated as an error apparent on the face of the record forthe purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. Toput it differently an order or decision or judgment cannot be correctedmerely because it is erroneous in law or on the ground that a differentview could have been taken by the court/tribunal on a point of factorlaw. In any case, while exercising the power of review, thecourt/tribunal concerned cannot sit in appeal over itsjudgment/decision."7.6Further, reliance can be placed on Inderchand Jain (dead) throughL.Rs. vs. Motilal (dead) through L.Rs. [(2009) 14 SCC 663], wherein it hasbeen reiterated that “Review is not an appeal in disguise. Review Courtcannot sit in appeal over its own order and re-hearing of the matter isimpermissible in law.”7.7Reliance was then placed on Board of Control for Cricket in India vs.Netaji Cricket Club [(2005) 4 SCC 741]. Note of the earlier decisions was[8] ca-2081-2024.odttaken by the Hon’ble Supreme Court and it has been observed that “Whenthere is new discovery of fact, then there is no question of applying thereview powers, unless it is shown that certain facts were absolutely notwithin the knowledge of the appellant.”7.8In Kamlesh Verma vs. Mayawati and others, [(2013) 8 SCC 320] it hasbeen held by Hon’ble Supreme Court that “change of Advocate and then re-opening of the same point by the new Advocate is impermissible in review. Inthis case principles have been summarized relating to review jurisdiction.One of the grounds is – ix) Review is not maintainable when the same reliefsought at the time of arguing the main matter had been negatived.8.Thus, taking into consideration the legal position as well as the factualsituation that the applicant has failed to give reasonable ground whichprevented her from approaching this Court for review i.e. failed to explainthe delay of 765 days, the application stands dismissed. [ SMT. VIBHA KANKANWADI ] JUDGEscm[9]