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Raj Kumar Ramavtar Chourasia Vs. Mathew Charian Christian - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai High Court
Decided On
Case NumberMisc. Civil Appln. No. 67 of 1983
Judge
Reported inAIR1984Bom458; 1984MhLJ898
ActsCode of Civil Procedure (CPC), 1908 - Order 47, Rule 1
AppellantRaj Kumar Ramavtar Chourasia
RespondentMathew Charian Christian
Appellant AdvocateJ.N. Chandurkar and;L. Mohta, Advs.
Respondent AdvocateS.C. Mehadiya and;G.B. Lohiya, Advs.
Excerpt:
.....an error not of fact but of law or rather an erroneous application of law, could be a ground for review under order 47, rule 1 of the code of civil procedure- it was held that where the view of a judge was founded upon a wrog application of law it could not be said that it was a mistake apparent on the face of the record and would not be a ground for review under order 47, rule 1 of the code. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. - the powers of review enjoyed by..........an error not of fact but of law or rather an erroneous application of law, can be a ground for review under o. 47 r. 1 of the code of civil procedure ?2. the judgment of which the review is sought by this application was delivered by the learned single judge of this couort, but since he (r. s. padhye j. ) is not now available, this application under the rules has come up before us for hearing and disposal.3. the present applicant (original plaintiff ) as the landlord of the premises in question, approached the rent controller for grant of permission to save a notice on the non-0applicant mathe (orginal permission granted by the rent controller to the applicant was confirmed in appeal by the resident deputy collector. it appears that immediately after the grant of permission bby the.....
Judgment:

M.R. Waikar, J.

1. This is a review petition and the short question for consideration is whether an error not of fact but of law or rather an erroneous application of law, can be a ground for review under O. 47 R. 1 of the Code of Civil Procedure ?

2. The judgment of which the review is sought by this application was delivered by the learned single Judge of this couort, but since he (R. S. Padhye J. ) is not now available, this application under the Rules has come up before us for hearing and disposal.

3. The present applicant (original plaintiff ) as the landlord of the premises in question, approached the Rent controller for grant of permission to save a notice on the non-0applicant mathe (orginal permission granted by the Rent Controller to the applicant was confirmed in appeal by the Resident Deputy Collector. It appears that immediately after the grant of permission bby the Rent Controller, the applicant served a quit notice, determined the tenancy and filed a civil suit. During the pendency of this civil suit, however the permission so granted y the Rent Controller came to be confirmed in appeal by the Resident Deputy Colector. The suit was decreed in favour of tha applicant and the first appeal preferred by the tenant (defendant) was dismissed. The second appeal filed by the tenant which was heard by the learned single Judge was allowed on 19-8-1982 holding, for the first time, that the notice to quit that was given founded on the permission granted by the Rent Controller before it was confirmed by the appellate Court was premature and as such the suit was also not maintainable.

4. Feeling aggrieved by this decision. The original plaintiff filed the present review application. The decision of the learned single Judge is reported in Mathew Charian V. Rajkumar Ramavatar 1982 Mah L J 724. There existed a catena of cases consistently holding that a suit can be instituted on the basis of the permission granted by the Rent Controller even though the appeal may be pending before the Collector, though however, it would be necessary to stay the decision of such a suti till th disposal of the appeal by the Collector. The learned single Judge, however,m relied upon a Division Bench decision of this court in Indra singh v. Shiravacx, AIR 1984 Bom 347. This Indra Sigh's case was single Judge held that the working in Cl. 21 (3) of the Rent Control order is in pari materia with the provisions of S. 14(3) of the Bombay Rent Act and relying upon certain observations of the Division Bench, rules as above.

5. It may be pointed out that during the pendent of this petition, the decision of the learned single Judge in Mathew's case came up for consideration by a reference made by th district Judge, Akola which was heard by a division Bench of this court of which one of us was a party. The said decision is reported in Pradhakar v. Bharat Santaji More, : AIR1983Bom488 . The decision of the learned single Judge reported in Mathew's case came to be overruled. It was observed that the decision in Indra Singh's case which was relied upon bythe learned single Judge was in fact not an authority for a proposition that a suit for eviction filed after obtaining the certificate form the Controller was premature and unentertainable. It was pointed out that form the observations to be found in Indra Singh's case, the institution and the pendency of the suit was never held as bed nor illegal, but what was denounce was the decision and the decree which was founded on the mere certificate of the Controller when it was the subject matter of the appeal before the collector under the Bombay Rent Act.

6. The short question for consideration before us is whether in the absence of the decision in Prabhakar's case : AIR1983Bom488 which came to be pronounced by the Division Bench during the prudence of this application, the learned single Judge could have reviewed the judgment holding that the second appeal was decided by him on an erroneous application of law laid down in Indra Singh's case (AIR 1948 Bom 347).

7. In a plethora of cases it is laid down 1973 Cal 302, it was observed that on an application for review, the Court cannot proceed to deal with the case on merits as if on an appeal. An erroneous view of the law on a debatable point or wrong exposition of the law or wrong application of the law cannot be considered to be a mistake or an error apparent on the fact of the record.

8. In S. P. Awate's v. C. P. Fernandes, : AIR1959Bom466 , this High Court (Chalgla C. J.) obseved:

'The powers of review enjoyed by the High Court are very limited powers and when a decision is challenged on the that there is an error apparent on the face of the record, the error contemplated is an error so clear, that no Court would permit such an error to remain on the record. The error is not an error which could be demonstrated by a process of ratiocination, nor would it be correct to say that when two views on a question of law are possible and the Court has taken one view, the fact that the other view is a more acceptable view would render the first view a n error apparent on the face of the record.

The High Court cannot extend its jurisdiction on a review application. Questions of jurisdiction must not be determined form the point of view of the merits of the particular case which is being argued before a Court. Whether a Court has or not jurisdiction does not depend upon how strong or how meritorious the case of a party is, and however meritorious the case may High Court is helpless and unable to give him relief, because the points sought to be urged are points which cannot be urged on a review application.'

9. In Thungabhadra Industries Ltd. v. Govt. of Andh Pra, : [1964]5SCR174 , the Supreme Court observed (Para11):

'A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares on in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the recorded would be made out.'

10. In another decision reported in Northern India Caterests v Lt. Governor, Delhi, : [1980]2SCR650 , the Supreme Court observed (Paras 8-9):

'But whatever the nature of the proceeding it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring mssion or patent mistake or like grave error has crept in earlier by judicial fallibility.' Canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record.'

11. In Utsaba v. Kandhuni, : AIR1973Ori94 the Orissa High Court obseved (at p. 97):

'The finding of a. Misra J.that defendants 2 to 6 must have derived their possession form the mortgagee may be based on a surmise as contended by the learned Advocate for the petitioner and that finding maybe wrong, but it is apparent from the judgment that the Court had applied its mind to that particular contention and after conscious reasoning has arrived at that conclusion. That conclusion may be wrong but merely because it is wrong it cannot be reviewed. That a decision is erroneous in laws is no grounds for ordering tis review.

12. In Naranbhai Jinabhai v. gopaldat Venidas, : AIR1972Guj229 , the obsevations to be found are

'Where the trial Court at an earlier stage in the litigation after hearing the parties on the controversy whether the Court had pecuniary jurisdication to hear the suit decided on merits by an inter locator order that it had pecuniary jurisdiction, the Court, ignoring the provisions, of O. 476, R. 1, cannot review its decision has been rendered doubtful in view of subsequent decision of the High Court.'

The decision of the Bombay High Court in S. P. Awate's case : AIR1959Bom466 was relied upon.

13. Thus the consistent view is that a decision erroneous in law is certainly no ground for ordering a review. If a Court had decided, a point, but decided it erroneously, the error cannot be said to be one apparent on the face of the record or even analogous to it. In the present case also the learned single Judge relied upon 1948 Bom 347) as certain provisions of the local Rent Act were in pari materia with the provisions of the Bombay Rent Act and found, though erronneously, that the quit notice founded upon the grant of permission bythe controller was ineffective, the permission being subjudice and the suit that it was a mistake apparent on the fact of the record. It was at best a mistake of erroneous application of the law as was laid down in Indra Singh's case .

14. Shri J. N. Chandurkar the learned counsel for the applicant, however, referred to the observations of the Supreme Court appearing in Raja Shartrunijit v. Md. A. Azim Khan, : AIR1971SC1474

'Counsel for the appellant submitted that when the High Court decided the matter, the HighCourt applied the law as it stood and a subsequent change of law could not be a ground for review. The appellant'' contention is not acceptable in the present case for two principal resons: first, it is not a subsequent law. It is the las which all along was there from 1952. The deeming provision is fully effective the operative as from 25 May, 1953 when the 1952 Act came into force. The result is that the court is to apply the legal provision as it always stood. It would, therefore, be error on the face of the record. The error would be that the law that was applied was not the law which is applicable.'

This was a case of a subsequent legislation with retrospective errect. In rhe case of a legislation passed subsequent to the date of a judgment with retrospective effect, the position is certainly differedent. Since such a legislation is projected back to the date of delivery of the judgment, it may be possible to say that the error is apparent on the face of the record in judgment which was based on the old or unamended legialation. The above obsevations of the supreme Court mad in the context of a subsequent legislation with retrospective effect would not, therefore, apply to the present case where the view of the learned ..................... divergence of opinion cannot amount to an error apparent on the face of the recored.

15. In the view of the matter, therefore, because the view that was taken by the learned single Judge (R. S. Padhye J.) subsequently came to be overruled, the present application for review which was filed before the learned single Judge to correct his decision on the ground that reliance on Indra singh's case AIR 1948 Bom 347 was unwarranted and out of place, was certainly untenable and it could not be said that there was any error that was apparent on the face of the record. To hold otherwise would be to overlook the difference between an appellant jurisdiction and jurisdiction to review. The petition, therefore, is dismissed with costs.

16. Petition Dismissed.


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