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Gabhaji Lilaji Vs. Vora Saiyadbhai Kadarbhai Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Applns. Nos. 304 and 305 of 1977
Judge
Reported inAIR1981Guj99; (1980)GLR961
ActsBombay Revenue Tribunal Act, 1958 - Sections 17 (1); Code of Civil Procedure (CPC), 1908 - Order 47, Rule 1
AppellantGabhaji Lilaji
RespondentVora Saiyadbhai Kadarbhai Etc.
Advocates: J.M. Patel, Adv.
Cases Referred(vide Medical & Dental College v. Nagaraj
Excerpt:
.....petitioner herein, who was applicant before him, was a tenant as well as watchman in respect of the land in question, and secondly the learned member disposing of the revision application applied the law pertaining to surrender of tenancy rights contained in section 15 of the tenancy act which was not applicable at the relevant time, namely, 1940-41 a. ' what is an error apparent on the face of the record cannot be defined precisely or exhaustively since in the very nature of things it is indefinite and must be always determined judicially on facts of each case. i am of the opinion that the tribunal has reappraised the entire evidence and found that the finding in the earlier order that the petitioner was a tenant as well as watchman was contradiction in terms and was not justified by..........sad demise of the latter. in the review application, the learned member found that there was an error apparent on the face of the record in two respects; firstly, the finding of the member disposing of the revision application was contradictory in terms in as much as he held that the petitioner herein, who was applicant before him, was a tenant as well as watchman in respect of the land in question, and secondly the learned member disposing of the revision application applied the law pertaining to surrender of tenancy rights contained in section 15 of the tenancy act which was not applicable at the relevant time, namely, 1940-41 a. d. when the land was part of the erstwhile state of baroda. the learned member, therefore, thought fit to set aside the earlier order and directed.....
Judgment:
ORDER

1. The Petitioner was a tenant of the land of S. No. 31 admeasuring acres 16-35 gunthas situate within the revenue limits of village Khanusa in Vijapur taluka of the Mehsana District. This piece of land was divided into two parts; S. No. 31/1 and S. No. 31/2 admeasuring acres 8-13 gunthas and acres 8-12 gunthas respectively. The respondent of Special Civil Application No. 305 of 1977 purchased the land of S. No. 31/1 while the respondent of Special Civil Application No. 304 of 1977 purchased the land of S. No. 31/2.

The grievance of the Petitioner is that his name was removed from the record of rights at the instance of the respondents who applied to the Mamlatdar concerned on the ground that the Petitioner was no more a tenant on the said Piece of land, without any inquiry being held as required by law. The Petitioner, therefore, carried the matter in appeal before the Prant Officer who directed the respondents to seek negative declaration under Section 70 (b) of the Tenancy Act against the Petitioner that he was no more a tenant. Accordingly, the respondents applied to the Mamlatdar who granted the negative declaration as sought for. The said order granting negative declaration was confirmed in appeal. However, in the revision preferred by the Petitioner, the Gujarat Revenue Tribunal, by its order of 10th December, 1975, reappraised the entire evidence and in a considered judgment held that the petitioner was a tenant and, therefore, reversed the order of the Collector confirming the order of the Mamlatdar.

It appears that the respondents, in both these petitions, sought review of the aforesaid order of the Tribunal. The Review Application was required to be heard by the member other than the one who disposed of the revision application, on account of the sad demise of the latter. In the review application, the learned Member found that there was an error apparent on the face of the record in two respects; firstly, the finding of the member disposing of the revision application was contradictory in terms in as much as he held that the petitioner herein, who was applicant before him, was a tenant as well as watchman in respect of the land in question, and secondly the learned Member disposing of the revision application applied the law pertaining to surrender of tenancy rights contained in Section 15 of the Tenancy Act which was not applicable at the relevant time, namely, 1940-41 A. D. when the land was part of the erstwhile State of Baroda. The learned Member, therefore, thought fit to set aside the earlier order and directed rehearing of the matter. It is this order granting the review application which has been challenged in this petition.

2. What is the scope and width of Court hearing review application under Order 47, Rule 1 of the civil procedure code has come up for consideration in number of decisions. The power of Revenue Tribunal to review its own order is to be found in Section 17 (1) of the Bombay Revenue Tribunal Act, 1957 as applied to the State of Gujarat. It is in pari materia with the provision contained in Order 47 Rule 1of the Civil Procedure Code. This Court in Patel Gordhanbhai Garbadbhai v. Patel Bhagwandas Sanabhai, (1976) 17 Guj LR 326, considered the scope and width of the power of review under Section 17 (1) of the Bombay Act as applicable in the State of Gujarat. S. H. Sheth, J., speaking for the Court held that none of the three grounds which have been mentioned in the first proviso to sub-section (1) of Section 17 of the Bombay Revenue Tribunal Act confers jurisdiction upon the Revenue Tribunal to rehear a matter entirely or to reappreciate the evidence all over again, and if the member of the Revenue Tribunal who decided the revision application had not applied his mind to the facts of the case and had arrived at a perverse conclusion it was open to the aggrieved party to seek against it such remedy as he had under law and not to seek review thereof since Section 17 (1) does not confer the jurisdiction upon the Revenue Tribunal to act as a Court of Appeal. It was further held that this power is exercisable only for correcting a patent error which the Tribunal can always correct and reshape its decision in the light of the correction of the error. It cannot reappreciate the evidence and arrive at a different conclusion from the one which was arrived at an earlier stage.

3. In A. T. Sharma v. A. P. Sharma AIR 1979 SC 1047 the Court was required to consider the scope and width of the power of High Court under Order 47 Rule 1 of the Civil Procedure Code in respect of the decision in a petition under Article 226 of the Constitution of India. The Supreme Court did recognise that though Article 226 did not preclude a High Court from exercising the power of review which is inherent in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it, none-the-less this power is not unlimited and it can be exercised only on the grounds specified under Order 47. Rule 1 of the Civil Procedure Code. Chinnappa Reddy, J., speaking for the Court, observed as under:

'...A power of review may be exercised on the discovery of new and important matter or evidence which after the exercise of due deligence was not with in the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found: it may also be exercised on any analogous ground. But it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by subordinate court.'

What is an error apparent on the face of the record cannot be defined precisely or exhaustively since in the very nature of things it is indefinite and must be always determined judicially on facts of each case. It is not merely enough that there is an error but it must be manifest on the face of the record -as per example when it is based on clear ignorance or disregard of the provisions of law. Venkatarama Ayyar, J. in Hari Vishnu Kaniath v. Ahmad Ishaque. AIR 1955 SC 233, approved the broad test laid down by Chagla, C. J. in Batuk K. Vyas v. Surat Municipality, AIR 1953 Bom 133 that no error could be said to be apparent on the face of the record if it is not self-evident and if it requires an examination or argument to establish it.

4. In M/s. Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh. AIR 1964 SC 1372 the Supreme Court ruled that there is a distinction which is real, though it might not always be capable of exposition, between mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent', and a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. The Court in that case was required to consider whether the statement in the earlier order that the case did not involve any substantial question of law was an error apparent on the face of the record because in an identical state of facts the Court had on earlier occasion found that a substantial question of law did arise. In that context, Ayyangar, J. speaking for the Court held as under:

'... Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one 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 record would be made out....'

5. In view of this settled legal position I have, therefore, to consider whether the Tribunal was justified in reviewing its earlier order. I am of the opinion that the Tribunal has reappraised the entire evidence and found that the finding in the earlier order that the petitioner was a tenant as well as watchman was contradiction in terms and was not justified by the evidence. Assuming that the finding was contradictory it cannot be corrected in exercise of the review jurisdiction. It may be an error no doubt and it can be corrected by a higher court in exercise of its appellate jurisdiction. The Tribunal, while justifying its exercise of review jurisdiction, referred to the aforesaid inconsistent finding made by the Tribunal in its earlier order and observed as under:

'...This finding is apparently irreconcilable with the finding regarding tenancy of a person who relies on the agreement as to admission that he is the watchman. Thereafter he cannot be considered to be a tenant. The learned Member has explained away this apparent contradiction by considering the surrender as invalid surrender of tenancy and thereafter he has held that the surrender being invalid his tenancy rights continued....'

The learned Member exercising review jurisdiction thereafter referred to the aspect of surrender as discussed in the earlier order where the Tribunal was of the opinion that it was a settled position of law that when there is a surrender of tenancy rights which did not comply with the provision of Section 15 of the said Act, the tenancy subsisted and the relationship of landlord and tenant is not snapped. He then proceeded to observe as under:

'...It may be observed here that this finding is apparently based on error of the law regarding surrender prevailing in the year 1940-41. Admittedly Section 15 of the Act was not in force and therefore this error is apparent and deserves to be revised and therefore review succeeds on this ground.'

An innocuous view of law on a debatable point (see: S. P. Awate v. C. P. Fernandese, AIR 1959 Bom 466) or a wrong exposition of law as was the case in J. N. Sahani v, State. AIR 1956 Madh Bha 174 (FB) or a wrong application of law as was the case in G. S. Gupta v. Basheer Ahamed, AIR 1977 Kant 193, cannot be said to be a mistake or an error apparent on the face of the record justifying the invocation of review jurisdiction. I am, therefore, of the opinion that the Tribunal while under the guise of exercise of review jurisdiction, in fact and substance exercised the appellate power and reappraised the whole evidence and as a result there of found that there was contradictory finding which was not justified in evidence of law which was incorrect. An error which could only be demonstrated by process of ratiocination cannot on any matter of principle or authority be considered to be an error apparent on the face of the record (vide Medical & Dental College v. Nagaraj, AIR 1972 Mys 44). I am, therefore, of the opinion that the impugned order of the Tribunal of January 2, 1977 was without jurisdiction and, therefore, requires to be quashed and set aside.

6. The result is that the earlier order of the Tribunal will be restored treating the petitioner as a tenant of the land in question in these two petitions. Rule is made absolute accordingly with no order as to costs since the opponents have not made any appearance either in person or through their Advocates.

7. These petitions are allowed accordingly.

8. Petitions allowed.


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