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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Satyanand Kumar
  • Sailesh Chandra Sinha and Rameshwar Choudhary
Judges
  • Tarkeshwar Nath, J.
Acts
  • provisions of Order 47, Rule 5 of the CPC,
  • Order 41, Rule 11 of the CPC.
  • Order 47, Rule 1 of the CPC.
  • Land Reforms Act,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Satyanand Kumar
  • Sailesh Chandra Sinha and Rameshwar Choudhary
Judges
  • Tarkeshwar Nath, J.
Acts
  • provisions of Order 47, Rule 5 of the CPC,
  • Order 41, Rule 11 of the CPC.
  • Order 47, Rule 1 of the CPC.
  • Land Reforms Act,
See more information ...
Smart Summary

Structured Summary of the Opinion — Civil Review Application by Defendant Nos. 1 & 3

Factual and Procedural Background

The original suit was for specific performance of a contract of sale of 1 bigha 18 kathas 5 dhurs of land in village Mahinam Patti. The plaintiff's case was that Sant Mallik (father of defendant Nos. 1 and 2 and karta of the joint family) executed a Mahaddanama dated 14 November 1953 in the plaintiff's favour for consideration of Rs. 1,900, with part payment and sums to be set off against earlier hand-notes; the balance was to be paid and a sale deed executed within three months. Sant Mallik fell ill and died on 30 April 1954 and the deed was not executed; his heirs (the defendants) refused to execute the sale deed and the plaintiff sued for specific performance.

Defendants (including Nos. 1 and 3) pleaded that the Mahaddanama was fraudulent, that Sant Mallik had no title over the property, and that a prior partition (in 1343 Fs./1942) by metes and bounds (award Exhibit E dated 29 April 1942) allotted only 18 kathas to Sant Mallik; accordingly Sant could not alienate more than that. The trial Court (Munsif) held the Mahaddanama genuine and decreed specific performance; that decree was affirmed on first appeal. This Court heard a second appeal (No. 553 of 1959) and on 24 January 1962 affirmed the genuineness of the Mahaddanama but remanded two specific questions to the lower appellate Court: (a) whether the partition alleged by appellants was established (onus on appellants), and (b) if partition by metes and bounds in 1942 was correct, the effect of that partition on the Mahaddanama (Ext. 6).

On remand the lower appellate Court found that a 1942 partition by metes and bounds had occurred and that Sant Mallik was allotted only 18 kathas; it held the Mahaddanama binding only to the extent of those 18 kathas and modified the decree to direct defendants to execute a sale deed for those 18 kathas (specific plots described), failing which the trial Court was to execute the deed. Defendants Nos. 1 and 3 filed Second Appeal No. 600 of 1962; that appeal was dismissed by Ahmad, J. on 3 August 1964. The present application for review of Ahmad, J.'s judgment was filed by defendant Nos. 1 and 3 on 1 September 1964.

Legal Issues Presented

  1. Whether, under Order 47, Rule 5 of the Civil Procedure Code (CPC), the review application had to be heard by the Judge (Ahmad, J.) who passed the decree or whether another Judge could hear it after Ahmad had ceased to be a member of the Court.
  2. Whether there existed any ground for review of Ahmad, J.'s judgment in Second Appeal No. 600 of 1962, specifically whether an error apparent on the face of the record arose because counsel for the appellants was under a misapprehension that prevented placing the partition award (Exhibit E) before the Court at the hearing of the second appeal.
  3. The remand issues considered earlier by the lower appellate Court and this Court: (a) whether the appellants had established partition by metes and bounds in 1942, and (b) if so, the effect of that partition on the Mahaddanama (Ext. 6) executed by Sant Mallik. (These were the substantive questions that had been previously remanded and determined by the lower appellate Court.)

Arguments of the Parties

Petitioners / Defendants Nos. 1 & 3 (as described in the opinion)

  • At trial and on appeal they contended the Mahaddanama was fraudulent and fabricated and that Sant Mallik had no right, title or interest in the property described in the Mahaddanama.
  • They relied on an award (Exhibit E dated 29 April 1942) showing partition by metes and bounds; their case was that only 18 kathas were allotted to Sant Mallik, and therefore he could not alienate more than that.
  • In the second appeal before Ahmad, J. counsel for the appellants argued that the 18 kathas allotted to Sant Mallik under Exhibit E were given only for maintenance and were not alienable; therefore Sant could not have contracted to sell them.
  • In the civil review application, petitioners argued that by a misapprehension (of counsel) the award (Exhibit E) could not be placed before Ahmad, J. at the hearing of the second appeal and that this omission constituted an error apparent on the face of the record justifying review.
  • They also raised a procedural objection that the review should have been heard by Ahmad, J. (or that it was improperly placed before another Judge), invoking Order 47, Rule 5 CPC.

Plaintiff / Opposite Party (as reflected in the record)

  • The plaintiff's case, at trial, was that Sant Mallik had executed a genuine Mahaddanama in the plaintiff's favour, consideration was paid in part and the balance was agreed to be paid and the sale deed executed; plaintiff sought specific performance.
  • The trial Court and the first appellate Court accepted the plaintiff's case on the genuineness and validity of the Mahaddanama; this Court in the earlier second appeal also affirmed the document's genuineness but remanded limited questions (partition issues) to be decided.
  • The opinion records that the plaintiff-opposite party opposed the review application; beyond that the judgment does not set out detailed points urged by the plaintiff in opposition to review other than the outcome which was to resist the petitioners' grounds for review.

Table of Precedents Cited

Precedent or Legal Provision Rule or Principle Cited For (as expressed in the opinion) Application by the Court in this Opinion
Order 47, Rule 5 CPC Prescribes that where the Judge who passed the decree is still attached to the Court and not precluded for six months, that Judge shall hear the review; no other Judge shall hear it. The Court considered a preliminary objection based on this provision and concluded it did not apply here because Ahmad, J. was no longer a Judge of the Court when the review became ready for hearing; therefore another Judge could properly hear the review after nomination by the Chief Justice.
Order 41, Rule 11 CPC (referenced) Referenced in the opinion in connection with a cited earlier review (Civil Review No. 6 of 1961) where a second appeal had been dismissed in limine under this rule. Used as part of factual background to an earlier review decision discussed by the Court; the present Court distinguished that earlier procedural posture from the facts here and did not treat it as controlling.
Order 47, Rule 1 CPC Grounds for review where there is an error apparent on the face of the record (invoked and discussed through cited authorities). The Court examined authorities construing Order 47, Rule 1 to assess whether the petitioners had shown an error apparent on the face of the record (it concluded they had not).
Section 151 CPC General inherent powers of the Court (cited in relation to a cited review application). Mentioned in description of prior authorities; not applied as a separate basis to alter the outcome in the present review.
Bhagwat Bhagat v. Tej Narain Singh (Civil Revn. No. 1031 of 1957) (Pat) — judgment dated 26-10-1959 Illustrates circumstances where a review was entertained because important facts or mistakes prevented certain contentions being pressed at the earlier hearing. Discussed by the Court as an example relied upon by petitioners, but the Court found distinctions and held that the petitioners had not demonstrated a comparable error or omission here.
Mt. Jamuna Kuer v. Lal Bahadur, AIR 1950 FC 131 Holds that whether mistake was caused by omission of the Court or of the lawyer is immaterial; such mistakes may be treated as errors apparent on the face of the record. The Court considered this authority but observed that the present petitioners had not shown a similar kind of demonstrable error apparent on the face of the record.
Sukhdeo Das v. Kashi Pd., 1958 Pat LR 255; AIR 1958 Pat 630 (Full Bench) Full Bench decision cited in the context of whether a certain view of law was grossly erroneous. Referred to in the discussion of Bhagwat Bhagat and as part of the Court's review of authorities on when review may be allowed; not held to assist the petitioners here.
R.C. Govinda Chettiyar v. Varadappa Chettiar, AIR 1940 Mad 17 Authority where rehearing/reargument was allowed because counsel's misapprehension led to failure to argue points before the Court below. Discussed as an example where reargument/review was permitted; the Court noted the factual foundation in that case differed from the present facts and declined to allow review on similar grounds here.
Hari Sankar v. Anath Nath Mitter, AIR 1949 FC 106 Holds that an erroneous decision in law alone is not a ground for review, but failure of the Court to apply its mind to a relevant provision may constitute an error analogous to one apparent on the face of the record. The Court observed that no question arose here of Ahmad, J. failing to apply his mind to any provision of law; hence this authority did not support review.
Moran Mar Basselious Catholicos v. Most. Rev. Mar. Poulose Athanasius, AIR 1954 SC 526 States that when a court misconceives the terms or scope of a concession (or assumes a concession existed when it had not), the misconception can be a ground for review and normally must be presented by affidavit. Petitioners relied on this principle; the Court found no satisfactory demonstration of such a misconception of fact or law by Ahmad, J. in the present matter.
Naurata v. Anokha, AIR 1954 Pepsu 85 Holds that if relevant documents on record were overlooked and would have conclusively changed the outcome (error apparent on the face of the record), review may be justified. Examined by the Court: in that case documents were already on record and went to the point decided; in the present case petitioners did not show comparable circumstances that the award was on the record and overlooked in a way amounting to error on the face of the record.
Kamla Prasad v. Kunj Behari Mander, AIR 1922 Pat 119 Expresses caution that the mere fact that a point of law was not raised is not itself sufficient to warrant review. Relied upon by the Court as a restraint on granting review simply because an argument was not previously raised; applied to decline review here.
Jagannath Singh v. Kameshwar Singh (Civil Review No. 23 of 1964) (unreported; reference to orders) Example where a review was allowed because an apparent error on the face of an order (uncertainty about the nature/existence of a wall) justified recalling a prior order. Used to illustrate that review is available where there is an apparent error; the Court observed that in the present case no analogous error on the face of the record had been shown.
Bhagwat Bhagat v. Tej Narain Singh — (AIR 1964 Pat 474) (Civil Review No. 6 of 1961) Illustrates scope of review where a mistake of law gross and apparent on the record may justify review; also illustrates procedural questions about which Judge should hear review under Order 47, Rule 5. The Court considered the procedural history and distinguished that case on the ground that in the present matter Ahmad, J. was no longer attached to the Court when the review came up for hearing, so the rule requiring the same judge to hear the review did not operate here.
Land Reforms Act (referenced in Bhagwat Bhagat discussion) Invoked in cited prior case to show statutory effect on rights post-vesting in State; used in that context to analyze consequences of settlement and possession. Mentioned as part of factual and precedential background in the cited authorities; not directly applied to facts of the present review judgment.

Court's Reasoning and Analysis

The Court's analysis proceeded in two main stages: (1) the preliminary procedural objection about which Judge could hear the review, and (2) the substantive question whether there was any ground for reviewing Ahmad, J.'s judgment.

1. Preliminary procedural objection — who may hear the review:

  • The petitioners objected that because the review application was presented before Ahmad, J. for admission, the same Judge (Ahmad, J.) alone must hear the review under Order 47, Rule 5 CPC. The provision requires that if the Judge who passed the decree is still attached to the Court and not precluded for six months, that Judge shall hear the review.
  • The Court examined the sequence of events: the review application was presented on 1 September 1964 before Ahmad, J., but by the time it was ready for admission Ahmad, J. was no longer a Judge of the Court. The office placed the application before R.K. Choudhary, J., for admission (and it was admitted on 5 April 1966). Later, the Chief Justice directed that the application be put before the present Judge for hearing.
  • The Court reasoned that admission and hearing are distinct stages; admission for limited purposes by one Judge does not mean that Judge must necessarily hear the review finally, especially when the original Judge is no longer attached to the Court. The Court distinguished the earlier authority (Civil Review No. 6 of 1961) because in that case R.K. Choudhary, J. was still a member of the bench and thus Order 47, Rule 5 applied; in the present case Ahmad, J. had ceased to be a Judge and the Chief Justice properly nominated another Judge to hear the review. The preliminary objection was therefore overruled.

2. Merits — whether there is ground for review:

  • The Court recalled the prior factual findings: on remand the lower appellate Court found a partition in 1942 allotting only 18 kathas to Sant Mallik and held the Mahaddanama binding only as to those 18 kathas. That factual finding was not challenged by the appellants in the second appeal.
  • The petitioners' sole ground for review was that counsel in the second appeal was under a misapprehension and therefore did not, or could not, place Exhibit E (the award) before Ahmad, J.; this omission allegedly produced an error apparent on the face of the record warranting review.
  • The Court carefully examined Ahmad, J.'s judgment which recorded that counsel for the appellants had raised one contention in the second appeal: that the 18 kathas allotted to Sant under Exhibit E were only for maintenance and therefore not alienable; Ahmad, J. observed this point did not appear to have been raised in the courts below nor had the award been brought before him, and therefore he found no substance in the contention.
  • The present Court noted that the contention about non-alienability involved questions of fact; those facts had not been raised at trial or on first appeal and could not be legitimately raised for the first time in a second appeal. Ahmad, J.'s treatment of the contention as not having been raised in the courts below was thus not shown to be erroneous.
  • On the specific allegation of misapprehension that prevented placing Exhibit E before the Court, the review application (and its statement of facts) did not satisfactorily show such a misapprehension or the reasons for not placing the award (e.g., translation issues or typographical/serving delays were suggested as possible explanations, but not established in the review materials).
  • The Court surveyed authorities relied upon by petitioners (including instances where review was allowed because documents on the record had been overlooked, or where counsel's misapprehension had caused failure to press points) but found that none of those authorities aligned factually with the present circumstances such that they mandated a review. Key distinctions included: absence of an error apparent on the face of the record here; absence of a showing that the award was on the record and overlooked by the Court; and the fact that the contention of non-alienability was a factual question not previously tried.
  • Applying these principles and the cited authorities, the Court concluded petitioners had not made out a satisfactory case of error apparent on the face of the record or of a consequential misapprehension by counsel that would justify review.

Holding and Implications

Core Ruling: REVIEW APPLICATION DISMISSED.

Consequences and direct effects:

  • The civil review application filed by defendant Nos. 1 and 3 was dismissed. The petition was dismissed (paragraph 34 of the opinion).
  • The review was dismissed with costs payable to the plaintiff-opposite party No. 1; the hearing fee was assessed at Rs. 64/-. (As recorded in the judgment: "the application for review is dismissed with costs payable to plaintiff-opposite party No. 1. Hearing fee is assessed at Rs. 64/-.")
  • The dismissal leaves intact Ahmad, J.'s judgment in Second Appeal No. 600 of 1962 (and thereby the modified decree directing execution of a sale deed in respect of the 18 kathas as had been directed after remand), and the Court declined to set aside or review that judgment on the grounds advanced.
  • The opinion expressly notes that petitioners failed to demonstrate any error of law or error apparent on the face of the record that would justify review; the Court therefore did not expand or depart from existing principles on review in this judgment and did not lay down new precedent beyond its application of settled principles to the facts of the case.

Final Order (as recorded): Petition dismissed.

TVN/G.G.M
Show full summary ...

    Pitambar Mallik And Another v. Ramchandra Prasad And Others Opposite Party.

    1. This application by defendants Nos. 1 and 3 is for review of the judgment dated the 3rd August, 1964, of Ahmad, J. (as he then was) in second Appeal No. 600 of 1962.

    2. The facts giving rise to this application are these. The suit out of which the aforesaid second appeal arose was for specific performance of contract of sale of 1 bigha 18 kathas 5 dhurs of land in village Mahinam Patti; and the case of the plaintiff was that Sant Mallik, father of defendant Nos. 1 and 2 as the karta of the joint family consisting of himself and all the other defendants, had executed a Mahaddanama dated the 14th November, 1953, in respect of the aforesaid land in his favour. The consideration of the sale was Rs. 1900/- out of which Rs. 300/- was claimed to have been paid at the time of the execution of the Mahaddanama: Rs. 1234/- was agreed to be set off against two hand-notes executed by Sant Mallik, dated the 8th August, 1952 and 2nd January, 1953, and the balance of Rs. 366/- was agreed to be paid at the time of the execution of the sale deed, within three months from the date of the Mahaddanama. Sant Mallik, unfortunately, fell ill and died on the 30th April, 1954, with the result that the sale deed agreed to between the parties could not be executed by him. Sant Mallik was the karta of the joint family and, on his death, the plaintiff asked his sons and other heirs the defendants to execute the deed, but they refused and hence the plaintiff instituted the suit for the relief already indicated. Defendant Nos. 1 and 3 took up the plea that the Mahaddanama was a fraudulent and fabricated document and that Sant Mallik had no right, title or interest in the property described in the Mahaddanama. Their case further was that Sant Mallik got the joint family properties partitioned in 1343 Fs. through the help of Punches and the properties described in Schedule I of their written statement were allotted to defendant Nos. 1 and 3; those described in Schedule II were allotted to defendant No. 2 and 18 kathas of land described in Schedule III were allotted to Sant Mallik. They relied upon an award (Exhibit E) dated the 29th April, 1942, for showing that 18 kathas only were allotted to Sant Mallik Their case was that Sant Mallik could not alienate any property beyond what was given to him by the said award (Exhibit E), Defendant No. 2 took similar pleas; but he died during the pendency of the suit and then his heirs were substituted.

    3. The Munsif held that the Mahaddanama was a genuine document and it was executed by Sant Mallik; there was no partition between Sant Mallik and his sons and that Sant had title and possession in respect of the land which he had contracted to sell Accordingly, he decreed the suit. There was an appeal against that decree, but the decree was affirmed. Thereafter, there was a second appeal numbered 553 of 1959 and it was disposed of by the judgment of this Court on the 24th Jan. 1962. This Court affirmed the findings given by the two Courts that Mahaddanama was genuine, valid and for consideration, but it remanded the case to the lower appellate Court for deciding the following questions:

    “(a) Whether the partition set up by the appellants had been established, the onus to prove partition being on the appellants, and,

    (b) If the Court of appeal below comes to the conclusion that the defendants' case that there had been partition by metes and bounds in 1942 was correct, it will further consider its effect on the Mahaddanama (Ext. 6) executed by Sant”

    4. The lower appellate Court, on remand, came to the conclusion on a consideration of the evidence that there was a partition by metes and bounds among Sant Mallik and his sons in 1942 and by the said partition only 18 kathas of land as described in Schedule III of the written statement of defendant Nos. 1 and 3 were allotted to the share of Sant Mallik. The lower appellate Court further gave a finding that the Mahaddanama (Exhibit 6) was binding only in respect of 18 kathas which had been allotted to Sant Mallik. The Court thus allowed the appeal in part and modified the judgment and decree of the trial Court to this extent that the defendants were directed to execute a sale deed in favour of the plaintiff in respect of 18 kathas of land only, i.e 15 kathas 9 dhurs of plot No. 492, 2 kathas 1 dhur of plot No. 490 and 10 dhurs of plot No. 185, failing which the sale deed had to be executed by the trial Court. Being aggrieved by this decree of the Court, defendant Nos. 1 and 3 filed Second Appeal No. 600 of 1962. This appeal was heard by Ahmad, J. and his Lordship dismissed it by judgment dated the 3rd August, 1964. The present application for review of the said judgment has been filed by defendant Nos. 1 and 3 on the 1st September, 1964.

    5. Learned Counsel for the petitioners took up a preliminary objection to my hearing this application for review. He submitted that this application for review was placed before R.K Choudhary, J., for admission, and as such this review application cannot be heard by another bench. Learned Counsel referred to the provisions of Order 47, Rule 5 of the CPC, which provides as follows:—

    “Where the Judge or Judges or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or any other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same.”

    6. This application for review was presented on the 1st of September, 1964, before Ahmad, J., but by the time the application became ready to be put up for admission, Ahmad, J., was no more a Judge of this Court and as such the office took the orders of the Hon'ble Chief Justice as to before which bench the application for review should be put up for admission. There was an order to place it before R.K Choudhary, J., for admission and it was then duly admitted by R.K Choudhary, J., on the 5th April, 1966. Subsequently when the application became ready for hearing, the office sought for instruction from the Hon'ble Chief Justice as to before which bench the review application should be put up for hearing. The Hon'ble Chief Justice directed that the review application should be put up before me for hearing. In these circumstances, this case has been placed before me for hearing.

    7. This application had to be put up for admission first and for limited purpose, meaning thereby that for purposes of admission it was placed before R.K Choudhary, J. The question of hearing this application finally at that stage did not and could not arise, inasmuch as the application could have even been dismissed. The question of hearing it finally arose only after it was admitted. For the purpose of hearing this application, there is a separate order, as indicated above, and in compliance with that order the office has placed this application before me for hearing. It will not thus be right to say, as has been urged by the learned Counsel for the petitioners, that this application ought to have been placed before R.K Choudhary, J. even for hearing.

    8. Learned Counsel for the petitioners has referred to some of the orders passed in Civil Review No. 6 of 1961 Shri Krishna Jee v. Rajeshwar Misra, D/- 15-5-1964: AIR 1964 Pat 474 The review there was sought in respect of an order dismissing Second Appeal No. 927 of 1960 in limine under Order 41, Rule 11 of the CPC. The review application was admitted by R.K Choudhary, J. on the 31st March, 1961, but when it came up for hearing before his Lordship on the 21st August, 1961, he directed that the review application should be placed before a Division Bench for hearing. The review application was then placed before a Division Bench on the 12th March, 1964, for hearing.

    9. An objection was taken at the hearing that in view of the provisions of O. 47, R. 5 of the CPC, the review application could not be heard by a Division Bench and only R.K Choudhary. J., was comnetent to hear it. Counsel for the opposite party in that case accepted that position and accordingly the Division Bench directed on the 12th March, 1964, that the Civil review application should be placed again before R.K Choudhary, J., for disposal. Ultimately, it was placed before R.K Choudhary, J., who heard the application and allowed it by his order dated the 15th May, 1964, and granted leave to appeal under clause 10 of the Letters Patent.

    10. R.K Choudhary, J. is still a member of the bench of this Court and as such the provisions of Order 47, Rule 5 of the CPC, were applicable to the facts and circumstances of Civil Review No. 6 of 1961. That case came within the purview of that rule and hence the review application had to be heard by R.K Choudhary, J. In the present case, as I have already indicated, Ahmad, J. is no more a Judge of this Court and after his departure to Cuttack as the Chief Justice of Orissa High Court, the review application had to be put for admission or for hearing before a Judge nominated by the Hon'ble the Chief Justice of this Court. I am, therefore of the view that the procedure adopted in Civil Review No. 6 of 1961 is of no assistance at all to the learned Counsel for the petitioners in the present case. I have thus no hesitation in overruling the preliminary objection raised by the learned Counsel for the petitioners about my hearing this application for review.

    11. Next comes the question as to whether there is any ground for review of the judgment of Ahmad, J., in Second Appeal No. 600 of 1962. The lower appellate Court, on remand, had found as a fact that there was a partition between Sant Mallik and his sons and, as a result of that partition, only 18 kathas of land fell to the share of Sant Mallik and as he had only 18 kathas of land, he could not contract to sell beyond that. In this view of the matter, the lower appellate Court held that the Mahaddanama was valid only to the extent of 18 kathas and the defendants had to execute sale deed in favour of the plan-tiff for that area. This finding of fact could not be, and was not, assailed by the appellants in that second appeal.

    12. The only ground urged by the learned Counsel for the petitioners for reviewing the said judgment is that on account of a misapprehension of the Counsel appearing for the appellants in the second appeal, the award (Ext. E) could not be placed before his Lordship at the time of the hearing of that appeal and thus there is an error apparent on the face of the record which could be well treated as a ground for the review of the judgment. In order to appreciate this contention, the penultimate paragraph of the judgment of Ahmad, J. can be usefully quoted:

    “Mr. Satyanand Kumar appearing for the defendants-appellants in support of this appeal raised only one contention. The submission made by the learned Counsel is that the aforesaid 18 kathas of land given to Sant under the award (Ext. E) was only for maintenance, and therefore, Sant could not make any contract for sale in respect of it in favour of the plaintiff. This point does not seem to have been raised in any of the two courts below nor the award has been brought before me. Therefore, I think, there is no substance in this contention.”

    13. Thereafter, in the last paragraph, his Lordship dismissed the appeal but without costs. The submission of the learned Counsel for the appellants in that second appeal was that 18 kathas of land were given to Sant Mallik by the award only for maintenance and so Sant Mallik could not make any contract for sale in respect of those 18 kathas. This objection was not taken in the written statement of the defendants and no issue was framed on that point. This was not canvassed either in the trial Court or in the lower appellate Court, nor even after remand in the lower appellate Court. In these circumstances, Ahmad, J., observed, and I should say with respect rightly, that this point was not raised in any of the two Courts below. Learned Counsel for the petitioners has not been able to show that there was any error in this observation of Ahmad, J., but his grievance is with regard to the fact that he could not place the award before his Lordship.

    14. Learned Counsel contended that if on account of misapprehension either of fact or of law, a Counsel does not press a point or place a document before a Court at the time of the hearing of the case, it is open to the Court to review its judgment and give an opportunity to the party to urge the point left over or place the document which by inadvertence was not placed or relied upon. In support of this contention, learned Counsel referred to the judgment dated the 26th October, 1959, in Civil Revn. No. 1031 of 1957, Bhagwat Bhagat v. Tej Narain Singh, (Pat) of a single Judge of this Court. The petitioners there had filed a suit for declaration of title for correction of barwarda and for confirmation of possession claiming that, as a matter of fact, after the revenue sale, they came in possession of the lands of Touzi No. 1862, which were wrongly shown as appertaining to Touzi No. 1863. The suit was dismissed by the trial Court in the first instance, but was decreed by the lower appellate Court in the year 1950. On the 22nd April, 1951, in execution of the decree of the lower appellate Court, the petitioners got delivery of possession.

    15. The other side came up to this Court in second Appeal No. 350 of 1950 and the judgment of the lower appellate Court decreeing the suit was set aside, and the case was remitted back to it for re-hearing of the appeal and fresh decision. The appeal was disposed of by judgment after remand on the 12th January, 1957. The suit was partly decreed and the plaintiff's title as proprietors of Touzi No. 1862 over all the lands of Schedule I of the plaint was declared. It was further held that they were entitled to recover possession of the bakasht lands of Khata Nos. 55, 57, and 60. But the learned Subordinate Judges held that after the vesting of the proprietor's interest in the State of Bihar since the 26th January, 1955, under the Land Reforms Act, only those bakasht lands which were in khas possession of the proprietors would be considered as having been settled with them as raiyati holdings. In this view of the matter, the Subordinate Judge held that the plaintiffs were entitled to the declaration only that they were the propritors of Touzi No. 1862 to which the lands of Schedule I of the plaint appertained.

    16. The plaintiffs thereafter filed an application for review under Order 47, R. 1, as also under section 151 of the CPC, on the ground that they could not follow the arguments which were being advanced in English to the Court and, therefore, could not bring it to the notice of the Court that as a matter of fact they did obtain dakhaldehani over this Khata by virtue of the delivery of possession effected on 22-4-1951. The Subordinate Judge refused to review his previous judgment and, therefore, there was an application in revision in this Court. It was pointed out that the records of the case would have shown that in pursuance of the decision of the appellate Court before remand, delivery of possession had been given to the petitioners on 22-4-1951. Untwalia, J. referred to the case of Mt. Jamuna Kuer v. Lal Bahadur, AIR 1950 FC 131 where it was held that whether the mistake was brought about by the omission of the Court or omission of the lawyer was immaterial, but it was surely an error which was apparent on the face of the record.

    17. But, besides this Untwalia, J. further held that the view of law taken by the lower appellate Court on the previous occassion was grossly erroneous in view of the Full Bench decision in Sukhdeo Das v. Kashi Pd., 1958 Pat LR 255 : ((AIR 1958 Pat 630) (FB), inasmuch as such a suit for recovery of possession could well have been decreed. The learned Subordinate Judge had further committed a gross error in holding that in view of the decision of the High Court in Second Appeal No. 350 of 1950, allowing the appeal and setting aside the judgment of the appellate Court passed in 1950, the delivery of possession effected on 22-4-1951 was void. In these circumstances, that civil revision application succeeded and the judgment of the learned Subordinate Judge refusing to review his previous judgment was set aside. In the present case, learned Counsel for the petitioners has not been able to show that there was any error of law or other error apparent in the judgment of Ahmad, J.

    18. Learned Counsel referred to the case of AIR 1950 FC 131, But, it appears from the facts of that case that in the concluding portion of the judgment the learned Judges of the High Court had made a specific declaration to the effect that Jamna Kuer was entitled to 2½ biswas Zamindari of village Raman and some other items. This declaration was made under some misapprehension as the list filed by the applicants was not limited to those properties only and, in fact, Mt. Jamna Kuer at the foot of her original petition had mentioned some items of the properties but later on she had amended her claim and claimed other properties as well. In those circumstances it was held that there was an error apparent on the face of the judgment.

    19. Learned Counsel referred to the case of R.C Govinda Chettiyar v. Varadappa Chettiar, AIR 1940 Mad 17. The respondents' Counsel in the lower appellate Court there had submitted that he would have no objection to the wall being held to be common wall and under the impression that the Court would, in consequence of that concession, give a finding accordingly, he did not meet the points mentioned by the appellant's advocate although he had arguments to urge in support of the findings of the trial Court. The appellate Court, however, did not hold that wall to be common. Thereafter an application for the rehearing of the appeal was presented by the respondents. On a joint statement filed by the learned advocates, who appeared for the parties, the Court held that it was fair and just to give an opportunity to the respondents to reargue the case fully. This view was affirmed by Patanjali Sastri, J. (as he then was) on the ground that on account of misapprehension learned Counsel for the respondents had not urged all the arguments in support of the finding recorded in favour of his clients by the first Court and consequently there was an erroneous impresssion on the part of the Subordinate Judge that the said Counsel had no arguments to urge to meet the points raised by the appellants' Counsel.

    20. Learned Counsel for the petitioners referred to the case of Hari Sankar v. Anath Nath Mitter, AIR 1949 FC 106. It was held in that case that merely because a decision was erroneous in law was certainly no ground for ordering review. But when the Court disposed of a case without adverting to or applying its mind to a provision of law which gave it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order 47, Rule 1 of the CPC. In the present case, there is absolutely no question of Ahmad, J., not applying his mind to any provision of law while deciding the connected second appeal.

    21. Learned Counsel then relied on Moran Mar Basselious Catholicos v. Most. Rev. Mar. Poulose Athanasius, AIR 1954 SC 526 and referred to the following observation therein at page 543:

    “Further, when the error complained of is that the Court assumed that a concession had been made when none had in fact been made or that the Court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the record but will have to be brought before the Court by way of an affidavit as suggested by the Privy Council as well as by this Court and this can only done by way of review. The cases to which reference has been made indicate that the misconception of the Court must be regarded as sufficient reason analogous to an erred on the face of the record.”

    22. In the present case, learned Counsel has not been able to point out satisfactorily that there is any misconception either of fact or of law on the part of Ahmad, J., while deciding the aforesaid second appeal.

    23. Learned Counsel referred to Naurata v. Anokha, AIR 1954 Pepsu 85. One of the points raised in the application for review there was that certain previous decision between the parties operated as res judicata. This depended upon the question whether the land which was the subject matter of those decisions was the same which was the subject matter of the present litigation. In appeal, it was held that the same was not established. The contention, however, in the review application was that while arriving at that conclusion the Court had ignored important documents which were on the record. Their Lordships held that the documents to which their attention was now drawn had an important bearing on the case and they conclusively went to show that the land for possession of which Mt. Jeoni brought the previous suits was the same which was the subject matter of the present litigation.

    24. It was said that such an important documentary evidence was not brought to their Lordships' notice and referred to by either party when the appeal was heard, but all the same since the documents were already there, the error was apparent on the face of the record. Thereafter, the observation was that an error of the kind whether it occurred by reason of the Counsel's mistake or it crept in by reason of the oversight on the part of the Court could always be a good ground for exercise of the jurisdiction of the Court to reverse its decision. It is important to notice that the relevant documents in that case were already on the record but still the Court while deciding the appeal had come to the conclusion that the lands involved in the subsequent litigation were not the same as in the previous suits. This conclusion amounted to an error on the face of the record which justified an interference on the presentation of an application for review of the previous judgment.

    25. Learned Counsel for the petitioners relied on the actual decision, dated the 15th May, 1964, in Civil Review No. 6 of 1961: (AIR 1964 Pat 474). I have already referred to some of the orders passed in this case while dealing with the preliminary objection raised by the learned Counsel for the petitioners. But, apart from that, learned Counsel relied in the said case with regard to the scope of an application for review of a judgment. It was held by Choudhary, J. in Civil Review No. 6 of 1961 that “if the mistake of law is gross and apparent on the face of the record, a review can be granted”. In the present case before me, learned Counsel has not been able to point out any mistake of law committed by Ahmad, J., while deciding the aforesaid second appeal and accordingly this decision is of no assistance to the petitioners.

    26. It was held by a Division Bench in Kamla Prasad v. Kunj Behari Mander, AIR 1922 Pat 119 that the mere fact that point of law which might have been raised was not raised in the case is not necessarily in itself sufficient to entitle the applicant to have his case reviewed and it will be a dangerous precedent to lay down a general rule that in all such cases a review ought to be granted.

    27. Learned Counsel for the petitioners relied on another unreported decision, dated the 22nd August, 1966, in Civil Review No. 23 of 1964 Jagannath Singh v. Kameshwar Singh (Pat). Untwalia, J. had previously held in his order dated the 16th April, 1964, passed in Civil Revision No. 1106 of 1963, that “Whether kind of brick-wall was there, as will appear from the order dated the 14th August, 1959, has got to be restored by the opposite parties; and until they do so, they have got to be detained in civil prison either for a period of one month or for a period until the status quo is restored by restoring the brick “fencing wall.”

    28. On the presentation of the review application, his Lordships reconsidered the relevant matters and came to the conclusion that “without finding specifically as to what was the nature of the wall and was it in existence when the order of injunction was made, it was difficult to direct the opposite parties in the civil revision, who are petitioners now in the civil review, to restore the status quo in regard to the alleged wall. That being so, it was not quite proper to send them to civil prison, especially when in the category of the petitioners are there females and minors”. His Lordship further held that the order made in the civil revision suffered from an apparent error on its face and that order should be recalled.

    29. The decision of that review application depended on the facts of that case and once the conclusion was that there was an apparent error in the order passed in the civil revision on its face, there was absolutely no difficulty in recalling that order. There is not the least doubt that if there is an error apparent on the face of the record then a review application would lie.

    30. The question which arises in the present case is as to whether there was any misapprehension on the part of the learned Counsel who appeared for the appellants in the connected second appeal before Ahmad, J. It appears from the judgment of that second appeal that the learned Counsel for the appellants raised the contention that 18 kathas of land were given to Sant Mallik under the award (Exhibit E) only for maintenance and as such he had no transferable right in respect of that land. Ahmad, J., held that there was no substance in this contention of the learned Counsel and observed that this point was not raised in any of the two Courts below. A decision on a point like this involved consideration of facts and the question of fact not having been raised either in the trial Court or in the lower appellate Court could not be permitted to be raised in the second appeal. In this view of the matter. Ahmad, J. overruled the said contention.

    31. What I want to make clear is this that the said contention was raised by the learned Counsel for the appellants in that second appeal and there was thus no misapprehension on the part of the said Counsel. It is true that Ahmad. J., mentioned in his judgment that the award was not brought before him. There may be reasons more than one for not placing the award before his Lordship. The award may not have been translated or, even if it was translated, a typed copy of it may not be ready or a copy of the translation may not have been served on the other side.

    32. On account of these reasons or one of them, the learned Counsel may not have referred to the award and placed it before his Lordship. In the grounds of this civil review, ground No. 4, no doubt, is to the effect that under a misapprehension on the part of the advocate, the award could not be placed before the Hon'ble Judge for consideration, but in the statement of facts mentioned in the review application, there is nothing about any misapprehension on this point. Considering all these matters, I am of the opinion that it has not been made out satisfactory that there was any misapprehension on the part of the learned Counsel for the appellants at the time of the hearing of the connected second appeal.

    33. In the result, I do not find any ground to review the judgment of the second appeal and the application for review is dismissed with costs payable to plaintiff-opposite party No. 1. Hearing fee is assessed at Rs. 64/-.

    TVN/G.G.M

    34. Petition dismissed.

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    Pitambar Mallik And Another v. Ramchandra Prasad And Others Opposite Party.
    (Nov 1, 1966)