R.C. Rai,far Applicant; Nihalani, for Non-Applicant.

Judgement

- This is a petition for review of the judgment and decree in second Appeal No. 52 of 1950-51 in the Court of the Judicial Commissioner, filed by the respondent in the appeal.

2. The non-applicant-plaintiff sued the applicant-defendant for possession of a portion of a land and the suit was decreed by the trial Court, but the first appellate Court dismissed it. The Court, however, in the above appeal set aside the decision of the first appellate Court and decreed the claim. The respondent in that appeal now seeks review of the said decision.

3. The judgment in the second appeal was delivered on 22-11-50 and the application for review is filed on 20-2-51 without being accompanied by copies of the judgment and the decree, which, however, were filed only on 3-9-51. A number of grounds are stated in the petition for review which can be crystallised in the main grounds as below, viz:

(a) that the Court did not consider certain provisions of the Bhopal Land Revenue Act which went to the very root of the tenability of the suit;

(b) that the Court should have accepted the finding of fact that the agreement to reconvey was separate from the terms of the sale deed and should have held S. 92, Evidence Act, inapplicable;

(c) that the Court failed to notice the last portion of the sale deed which gave a right to the plaintiff to sue for refund of its consideration;

(d) that the Court had not properly appreciated the plea of fraud;

(e) that there was no evidence on the quantum of mesne profits in the absence of which no decree should be passed for such profits.

4. On behalf of the non-applicant it is contended that copies of the judgment and decree, in the second appeal sought to be reviewed, should have been filed on record along with the application for review and in view of the delay in filing them, the petition was barred by time; that no petition for review could lie on the grounds raised.

5. The first point for determination, therefore, is whether the copies of the judgment and decree sought to be reviewed should have been filed with the petition for review and if so, whether the application was barred by time and was liable to be dismissed. On behalf of the applicant it is contended that no such copies of the judgment and decree were required to be filed with the petition and as such the application, even without them filed on the 89th day since the date of the judgment was within time. Reference is made to the decisions in Wajidali Shah v. Nawal Kishor, 17 All 213 (FB) and (2) Jowandsingh v. Alasingh, AIR 1938 Lah 295. The non-applicant refers to the decision in Adarji Edulji v. Manikji Edulji, 4 Bom 414 in support of his contention.

6. I have carefully perused all these three decisions. The contention of the non-applicant is that the provisions of R. 3 of O. 47 read with those of R. 1 of O. 41, Civil P. C. lay down the requirement of the copies of judgment and decree, sought to be revised, accompanying the petition for review. It is also contended that S. 12, Limitation Act also indicates such requirement as under it, it is laid down that the period requisite for obtaining these copies shall be excluded while computing the period of limitation for an application for review. The decision of the Allahabad High Court above referred to takes notice of this contention with reference to the provisions of S. 625 read with those of S. 541, Civil P. C. of 1887 and the judgment of His Lordship Sir John Edge, Chief Justice deals with the contention as is now made before me. It would also appear that His Lordship has referred to the decision of the Bombay High Court in Adarji Edulji v. Manikji, 4 Bom 414, and has remarked that the learned Judge, who decided that case, gave no reasons for the view that he held.

The contention on behalf of the non-applicant, on the basis of the provisions of S. 12, Limitation Act, has been dealt with at p. 216 and though I must confess that the reasoning does not appear to be entirely satisfactory, still that is a view which could be reasonably taken. My hesitation in accepting wholly the reasoning of His Lordship lies in the consideration that the provisions of Cls. (2) and (3) of S. 12, Limitation Act, would be nugatory or would have no meaning if they are not enforced by the Court. To my mind, however, in the absence of any provision requiring filing of a copy of an award for an application to set it aside, the provisions of sub-cl. (4) of S. 12, Limitation Act are automatically nugatory. In my opinion, therefore, it is possible to hold, as has been held by His Lordship, the Chief Justice of Allahabad High Court, that the provisions of Cls. (2) and (3) of S. 12, Limitation Act, would be attracted only when copies of the judgment and decree or a copy of the order, sought to be reviewed accompany the application for review. This view as expressed by the learned Chief Justice, has been accepted by not less than five judges of the same Court in the same case.

7. It must also appear that at the time when the case came up to be heard by the Bench of the Allahabad High Court, it was not the practice to file copies of the judgment and decree or a copy of the order, sought to be reviewed, with the petition for review. That again was one of the considerations which influenced the Judges of the said High Court in taking the view they did. During the short course of the existence of the Judicial Commissioners Court, so far as I know, it is not the practice to submit copies of judgment and decree or copy of an order sought to be reviewed, along with an application for review. In the circumstances, in my opinion, the contention of the applicant, that it was not necessary to file such copies with the petition, can be safely accepted. The same view has been taken by the Lahore High Court in the decision referred to above. The decision, however, does not seem to have considered the provisions of S. 12, Limitation Act, and it is based apparently on the consideration of the futility of filing copies of the judgment and decree or copy of an order with an application for review because the very record, in which that judgment and decree or order were passed, was bound to be put up before the Court concerned, being its own judgment and decree or order. Agreeing with the decision in the above two cases, I find that copies of the judgment and decree, sought to be reviewed, were not required to be filed with the petition for their review. That being so, the present application filed on 89th day, is within time.

8. The next point for determination is whether a review can be allowed on the grounds raised. The first ground is that the court did not consider certain provisions of the Bhopal Land Revenue Act. It is urged that the defendant was obviously a Shikmi holder of the land and therefore, firstly the suit to eject him could not lie in a civil court and secondly that the transfer could not take effect without the sanction of the Nazim and reference is made to Ss. 200 and 188, Bhopal Land Revenue Act. In my opinion, the contention is unsound and is also vexatious. It must firstly be pointed out that no such contention was made in the first appeal, much less in the second appeal and I am perfectly clear that it is nothing but an attempt to raise a point which the applicant could and ought to have raised in the appeal itself and no review can be granted on such a point. I would only refer to my own observations in para 5 of my order D/- 6-2-1951 in Mt. Mahmuda Begum v. Iftikhar Ali Khan, Misc. civil case No. 11 of 1950-51 (Bhopal) where it has been observed :

"I must, however, make myself clear that a court has to deal with only the contentions raised before it and disputed. In a civil case, the parties are bound by their pleadings and their contentions, if any, and no court is entitled to look beyond the pleadings or the contentions as made before it. That being so, if no other point was pressed, it was beyond the powers of both the courts to examine other questions unless they were questions of law."

The learned counsel for the applicant urges that the point, which he has raised, is a question of law, as it goes to the very root of the tenability of the suit in a civil court. It must, however, appear that the contention is unsound in view of the fact that it is forgotten that the question involved a question of fact viz : whether the defendant was a Shikmi holder as defined in S. 2 (21), Bhopal Land Revenue Act (IV (4) of 1932). It was never the case of the defendant that he was a Shikmi holder and such allegation of fact now cannot be permitted to be introduced. That being so, I am clear that no review can be allowed on this ground.

9. Taking up the grounds that the court should have accepted the finding of fact that the agreement to reconvey was separate from the terms of the sale-deed and should nave held S. 92, Evidence Act inapplicable and that the court had not properly appreciated the plea of fraud, I am clear that both the contentions have been dealt with in paras. 4, 5 and 6 of the judgment and the present attempt to reagitate the point is nothing, but frivolous and vexatious.

10. Taking up the ground as stated in Cl. (c), noted in the earlier part of this order, that the court failed to notice the last portion of the saledeed which gave the plaintiff a right to sue for refund of the consideration, that again has been dealt with in para. 7 of the judgment. It must be remembered that a perusal of the last portion of the sale-deed would clearly indicate that the relief of refund of consideration was not the only relief made available under even that portion of the sale-deed, and if the plaintiff had, under the law, another relief available to him, there was nothing to confine him to merely the relief of refund of consideration alone. It was never pleaded by the defendant that this was the only relief available to the plaintiff and no other relief could be awarded and the present attempt is nothing, but to reopen the same matter over again which the petitioner cannot be allowed to do.

11. Going over to the next ground viz : regarding the award of mesne profits in the absence of evidence in support of the quantum, an important rule seems to have been forgotten by the applicant in this behalf. A perusal of the plaint shows that the plaintiff claimed profits at the rate of Rs. 65 per year. In answer to this, the defendant applicant merely stated that he denied his liability for the profits. There was no specific denial of the quantum of the profits with the result that that portion could be deemed to be admitted. This would be perfectly clear from para 4 of the additional pleadings in the written statement of the defendant. A perusal of para. 8 of the judgment in the second appeal clearly indicates that firstly this contention was not even sought to be made while arguments were heard in the appeal and secondly it was, though briefly, still considered and as I have already observed, the contention could not be raised by the petition for review. In the circumstances, I am clear that no petition for review of the judgment and decree is tenable on the grounds raised in the petition.

12. It has been observed that the practice of filing review petitions on frivolous and vexatious grounds is becoming too common at this place and I would draw the attention of the Bar to the need of examining the law before the litigants are advised to rush to courts with such petitions. The petition for review is, therefore, dismissed with costs and it is ordered that the applicant shall pay the costs of the non-applicant. Pleaders fees for each party will be Rs. 50 if certified in time.

Petition dismissed.