# Dularey v. Ram Sewak & Ors

- **Citation:** (2021) 9 ILRA 703
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-22
- **Case number:** Second Appeal No. 518 of 2017
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dularey-v-ram-sewak-ors-47464
- **Pages:** 6

## Headnote

A. Civil Law-Code of Civil Procedure, 1908Section 100/115 & U.P.Z.A. & L.R. Act,
1950-Section 331-the dispute being with
respect to agriculture property, suit was
not maintainable in the civil court which
ought to have been filed in the revenue
court. the suit was barred by section 331
of the U.P.Z.A. & L.R. Act-plea regarding
bar of suit was not raised in the trial
court-the
contention
which
was
not
canvassed before the Court when the
impugned decision was rendered cannot
be made the subject-matter of review
proceedings-Hence, the review applicant
cannot be permitted to raise the new
grounds/arguments in review jurisdiction,
which was not canvassed in the second
appeal.(Para 1 to 22)

The review application is rejected. (E-6)

List of Cases cited:

## Text

9 All Dularey Vs. Ram Sewak & Ors.
703
(2021)09ILR A703
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.09.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Second Appeal No. 518 of 2017

Dularey ...Appellant
Versus
Ram Sewak & Ors. ...Respondent

Counsel for the Appellant:
Lalit Kishore Pandey, Sudhir Pande

Counsel for the Respondent:

A. Civil Law-Code of Civil Procedure, 1908Section 100/115 & U.P.Z.A. & L.R. Act,
1950-Section 331-the dispute being with
respect to agriculture property, suit was
not maintainable in the civil court which
ought to have been filed in the revenue
court. the suit was barred by section 331
of the U.P.Z.A. & L.R. Act-plea regarding
bar of suit was not raised in the trial
court-the
contention
which
was
not
canvassed before the Court when the
impugned decision was rendered cannot
be made the subject-matter of review
proceedings-Hence, the review applicant
cannot be permitted to raise the new
grounds/arguments in review jurisdiction,
which was not canvassed in the second
appeal.(Para 1 to 22)

The review application is rejected. (E-6)

List of Cases cited:

1. Ram Padarath & ors.. Vs II Addl. Distt. Judge,
Sultanpur & ors.. (1989) AWC 290 All
2. Pyarelal Vs Shubhendra Pilania (Minor)
(2019) 3 SCC 692
3. National Institute of Technology Vs Niraj
Kumar Singh (2007) 2 SCC 481
4. Kiran Singh & ors.. Vs Chaman Paswan &
ors.. (1954) AIR SCC 340
5. Kamlesh Verma Vs Mayawati (2013) 8 SCC
320
6. Perry Kansagra Vs Smriti Madan Kansagra
(2019) 20 SCC 753
7. B.H Prabhakar & ors.. Vs M.D. Karnataka St.
Coop. Apex Bank Ltd. (2000) 9 SCC 482
(Delivered by Hon'ble Ravi Nath Tilhari, J.)

(Review Application No. 28351 of 2018)

1. Heard Sri Sudhir Pande along with
Sri Lalit Kishore Pandey, learned counsels
for the review-applicant.

2. This review application has been
filed by the defendant-appellant in the
second appeal.

3. Regular suit no. 465 of 2002
(Mahaveer vs. Gokaran and Ors.) filed by
the
plaintiff-respondent
no.
1,
was
dismissed by the learned Additional Civil
Judge (Junior Division), court no. 3,
Sitapur, vide judgment and decree dated
07.04.2015. The regular civil appeal No. 40
of 2015 filed by the plaintiff-respondent
was allowed and the suit was decreed by
the learned Additional District Judge, court
no. 10, Sitapur vide judgment and decree
dated 11.10.2017.

4. Challenging the appellate decree,
the defendant-appellant filed second appeal
No. 518 of 2017, which was dismissed by
this Court at the admission stage, vide
judgment & decree dated 24.11.2017.

5. In the second appeal, the question
for consideration was "whether the lower
appellate court has committed any illegality
in allowing the appeal and not considering
the provisions of Section 331 of the
704 INDIAN LAW REPORTS ALLAHABAD SERIES
U.P.Z.A. & L.R. Act while deciding the
appeal, which was the sole contention
raised before the learned Single Judge.

6. This Court, held that no such
objection regarding maintainability on the
basis of Section 331 of U.P.Z.A. & L.R.
Act was taken by the defendant-appellant
and placed reliance on the full Bench
decision of this Court in Ram Padarath
and Ors. vs. Second Addl. District Judge,
Sultanpur and Ors. [1989 AWC 290 All.],
wherein it was held that the defendantappellant cannot be permitted to raise the
issue of maintainability in the second
appeal because no such objection was
raised before the courts below. In view
thereof, the second appeal was dismissed as
involving no substantial question of law.

7. Vide order dated 25.08.2021, the
defendant-appellant/review applicant, on his
prayer,
was
granted
time
to
file
supplementary affidavit to bring on record
the written statement, which was filed along
with C.M. Application No. 112182/2021

8. Sri Sudhir Pande, learned counsel for
the review-applicant, submits that the plea of
bar of jurisdiction in the civil court was raised
before the trial court. In this respect, he has
referred to para 9 of the written statement and
consequently submits that the judgment dated
24.11.2017 under review suffers from
apparent error of law.

9. Para 9 of the written statement is in
reply to para 9 of the plaint. Para 9 of the
written statement reads as under:-

"धारा 9 - गलत है I दावा गलत दायर
किया गया है I"

10. Para 9 of the plaint reads as
under:-

"धारा 9 - यह कि वाद िा िारण
कदनाांि 22.07.02 व 29.07.02 िो तथा उसिे
पश्चात प्रत्येि कदन जब प्रकतवादी सां० 1 मृति ता
3 द्वारा वादी िी अ.ब.स.द. भूकम पर कनमााण
िाया िरिे िब्ज़ा िरने िे उद्देश्य से क्रमशः
नपाई िी गयी तथा नीांव खोदने िा प्रयास किया
गया स्थान ग्राम िांजा शरीफपुर परगना व
तहसील लहरपुर कजला सीतापुर न्यायालय िी
अकधिाररिता में उत्पन्न हुआ I"

11. From perusal of the plaint and the
written statement, it is evident that any plea
regarding bar of the suit in the civil court
being barred by Section 331 of the U.P.Z.A
& L.R. Act was not raised.

12. On specific query put to Sri
Sudhir Pande, during arguments, if there
was any material on the record of the
Second Appeal before the learned Single
Judge, which evidenced that the plea of bar
of jurisdiction in the civil court was raised
in the trial court, as provided by Section
331 of the U.P.Z.A & L.R. Act, he fairly
submitted that there was no such material.

13. Sri Sudhir Pande has further
submitted that the dispute being with
respect to agriculture property, suit was not
maintainable in the civil court which ought
to have been filed in the revenue court. The
suit was barred by Section 331 of the
U.P.Z.A. & L.R. Act. Consequently, the
decree passed by the civil court being
without jurisdiction is nullity and the plea
of nullity can be raised at any stage, even in
execution of proceedings, and as such, such
an objection deserved consideration in
Second Appeal even if the objection to the
jurisdiction of the civil court was not taken
in the trial court. He has placed reliance in
judgment of Hon'ble Supreme Court in the
cases of Pyarelal vs. Shubhendra Pilania
(Minor) [(2019) 3 SCC 692], National
9 All Dularey Vs. Ram Sewak & Ors.
705
Institute of Technology vs. Niraj Kumar
Singh [(2007) 2 SCC 481] & Kiran Singh
and Ors. vs. Chaman Paswan and Ors. [
AIR 1954 SCC 340].

14. Sri Sudhir Pande has further placed
reliance on Order 7 Rule II(d) and Order 14
Rule 2(2) of the Civil Procedure Code, 1908
to submit that the question of jurisdiction
should have been decided as preliminary
issue and the burden of proof was wrongly
placed on the appellant, on the point of
possession.

15. On specific query made to Sri
Sudhir Pande, as to whether any argument, as
is being sought to be raised in review
application and noted in above paragraphs
was advanced before the learned Single
Judge, in second appeal, he fairly admitted
that those submissions were not made before
the learned Single Judge in the second
appeal.

16. The basic principles in which review
application can be entertained and cannot be
entertained have been eloquently laid down
by Hon'ble the Apex Court in the case of
Kamlesh Verma vs. Mayawati [(2013) 8
SCC 320]. Paragraph 20 under the heading
"summary of principles" is being reproduced
hereunder:-

20. Thus, in view of the above, the
following
grounds
of
review
are
maintainable as stipulated by the statute:

20.1. When the review will be
maintainable:

(i)
Discovery
of
new
and
important matter or evidence which, after
the exercise of due diligence, was not
within knowledge of the petitioner or could
not be produced by him;

(ii) Mistake or error apparent on
the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient
reason" have been interpreted in Chhajju
Ram v. Neki [(1921-22) 49 IA 144 : (1922)
16 LW 37 : AIR 1922 PC 112] and approved
by this Court in Moran Mar Basselios
Catholicos v. Most Rev. Mar Poulose
Athanasius [AIR 1954 SC 526 : (1955) 1 SCR
520] to mean "a reason sufficient on grounds
at least analogous to those specified in the
rule". The same principles have been
reiterated in Union of India v. Sandur
Manganese & Iron Ores Ltd. [(2013) 8 SCC
337 : JT (2013) 8 SC 275]

20.2. When the review will not be
maintainable:

(i) A repetition of old and
overruled argument is not enough to
reopen concluded adjudications.

(ii)
Minor
mistakes
of
inconsequential import.

(iii) Review proceedings cannot be
equated with the original hearing of the case.

(iv) Review is not maintainable
unless the material error, manifest on the
face of the order, undermines its soundness
or results in miscarriage of justice.

(v) A review is by no means an
appeal in disguise whereby an erroneous
decision is reheard and corrected but lies
only for patent error.

(vi) The mere possibility of two
views on the subject cannot be a ground for
review.
706 INDIAN LAW REPORTS ALLAHABAD SERIES

(vii) The error apparent on the
face of the record should not be an error
which has to be fished out and searched.

(viii)
The
appreciation
of
evidence on record is fully within the
domain of the appellate court, it cannot be
permitted to be advanced in the review
petition.

(ix) Review is not maintainable
when the same relief sought at the time of
arguing
the
main
matter
had
been
negatived.

17. In the case of Perry Kansagra v.
Smriti Madan Kansagra [(2019) 20 SCC
753], the Hon'ble Apex Court on the scope
and power of review has reiterated the
same principles. It is apt to reproduce
paragraph nos. 14 to 16, which are as
under:-

14. The issues that arise for our
consideration can broadly be put under two
heads:

14.1. (a) Whether the High Court
was
justified
in
exercising
review
jurisdiction and setting aside the earlier
judgment?

14.2. (b) Whether the High Court
was correct in holding that the reports of
the Mediator and the Counsellor in this
case were part of confidential proceedings
and no party could be permitted to use the
same in any court proceedings or could
place any reliance on such reports?

15. As regards the first issue,
relying on the decisions of this Court in
Inderchand Jain v. Motilal [Inderchand
Jain v. Motilal, (2009) 14 SCC 663 :
(2009) 5 SCC (Civ) 461] , Ajit Kumar Rath
v. State of Orissa [Ajit Kumar Rath v. State
of Orissa, (1999) 9 SCC 596 : 2000 SCC
(L&S) 192] and Parsion Devi v. Sumitri
Devi [Parsion Devi v. Sumitri Devi, (1997)
8 SCC 715], it was submitted by the
appellant that the exercise of review
jurisdiction was not warranted at all.

15.1.
In
Inderchand
Jain
[Inderchand Jain v. Motilal, (2009) 14
SCC 663 : (2009) 5 SCC (Civ) 461] it was
observed in paras 10, 11 and 33 as under:
(SCC pp. 669 & 675)

"10. It is beyond any doubt or
dispute that the review court does not sit in
appeal over its own order. A rehearing of
the matter is impermissible in law. It
constitutes an exception to the general rule
that once a judgment is signed or
pronounced, it should not be altered. It is
also
trite
that
exercise
of
inherent
jurisdiction is not invoked for reviewing
any order.

11. Review is not appeal in
disguise. In Lily Thomas v. Union of India
[Lily Thomas v. Union of India, (2000) 6
SCC 224 : 2000 SCC (Cri) 1056] this
Court held: (SCC p. 251, para 56)

'56. It follows, therefore, that the
power of review can be exercised for
correction of a mistake but not to substitute
a view. Such powers can be exercised
within the limits of the statute dealing with
the exercise of power. The review cannot
be treated like an appeal in disguise.'

33. The High Court had rightly
noticed the review jurisdiction of the court,
which is as under:

''The law on the subject--exercise
of power of review, as propounded by the
9 All Dularey Vs. Ram Sewak & Ors.
707
Apex Court and various other High Courts
may be summarised as hereunder:

(i) Review proceedings are not by
way of appeal and have to be strictly
confined to the scope and ambit of Order
47 Rule 1 CPC.

(ii) Power of review may be
exercised when some mistake or error
apparent on the fact of record is found. But
error on the face of record must be such an
error which must strike one on mere
looking at the record and would not require
any long-drawn process of reasoning on
the points where there may conceivably be
two opinions.

(iii) Power of review may not be
exercised on the ground that the decision
was erroneous on merits.

(iv) Power of review can also be
exercised for any sufficient reason which is
wide enough to include a misconception of
fact or law by a court or even an advocate.

(v) An application for review may
be necessitated by way of invoking the
doctrine actus curiae neminem gravabit.'

In our opinion, the principles of
law enumerated by it, in the facts of this
case, have wrongly been applied."

15.2. In Ajit Kumar Rath [Ajit
Kumar Rath v. State of Orissa, (1999) 9
SCC 596 : 2000 SCC (L&S) 192] , it was
observed: (SCC p. 608, para 29)

"29. In review proceedings, the
Tribunal deviated from the principles laid
down above which, we must say, is wholly
unjustified and exhibits a tendency to
rewrite
a
judgment
by
which
the
controversy had been finally decided. This,
we are constrained to say, is not the scope
of review under Section 22(3)(f) of the
Administrative Tribunals Act, 1985...."

15.3. Similarly, in Parsion Devi
[Parsion Devi v. Sumitri Devi, (1997) 8
SCC 715] the principles were summarised
as under: (SCC p. 719, para 9)

"9. Under Order 47 Rule 1 CPC
a judgment may be open to review inter
alia if there is a mistake or an error
apparent on the face of the record. An
error which is not self-evident and has to
be detected by a process of reasoning, can
hardly be said to be an error apparent on
the face of the record justifying the court to
exercise its power of review under Order
47 Rule 1 CPC. In exercise of the
jurisdiction under Order 47 Rule 1 C.P.C.
it is not permissible for an erroneous
decision to be "reheard and corrected". A
review petition, it must be remembered has
a limited purpose and cannot be allowed to
be "an appeal in disguise".

16. On the other hand, reliance
was placed by the respondent on the
decision in BCCI v. Netaji Cricket Club
[BCCI v. Netaji Cricket Club, (2005) 4
SCC 741] to submit that exercise in review
would be justified if there be misconception
of fact or law. Para 90 of the said decision
was to the following effect: (SCC p. 765)

"90. Thus, a mistake on the part
of the court which would include a mistake
in the nature of the undertaking may also
call for a review of the order. An
application for review would also be
maintainable if there exists sufficient
reason therefor. What would constitute
sufficient reason would depend on the facts
and circumstances of the case. The words
708 INDIAN LAW REPORTS ALLAHABAD SERIES
"sufficient reason" in Order 47 Rule 1 of
the Code are wide enough to include a
misconception of fact or law by a court or
even an advocate. An application for
review may be necessitated by way of
invoking the doctrine actus curiae neminem
gravabit."

18. From the aforesaid judgment, it is
evident that review proceedings are not by way
of appeal. It cannot be treated like an appeal in
disguise. A rehearing of the matter is not
permissible in law. It is not for an erroneous
decision to be ''reheard and corrected' in review
jurisdiction.

19. In the case of B.H. Prabhakar and
Others
vs.
M.D.
Karnataka
State
Cooperative Apex Bank Ltd. [(2000) 9 SCC
482], Hon'ble Supreme Court has held that the
contention which was not canvassed before the
Court when the impugned decision was
rendered cannot be made the subject-matter of
review proceedings. It is relevant to reproduce
the said judgment as follows:-

"We have carefully gone through
the common judgment sought to be reviewed
in these petitions. In our view, no error, much
less any patent error, of law could be
demonstrated by the review petitioners for
supporting these petitions. The resolution of
07th August 1985 was held not to be operative
on the facts of the case. In the Review Petitions
an attempt is made to show that resolution of
07th August 1985 was the basis of the
appointment of the petitioners. That has not
been accepted by the Court. An attempt to reargue this aspect does not fall within the
scope of the review proceedings. So far as the
affidavit of Manager, Legal Cell dated 10th
August 1996 is concerned it was never pressed
in service before the Court when the
impugned judgment was rendered. Hence,
non-consideration thereof cannot be treated
to be an error apparent on the record as tried
to be suggested. Policy adopted by the
Respondent-bank alleged to be anti-labor for
which reliance is placed on the decision of
this Court in the case of Dharwad Distt.
P.W.D. Literate Daily Wage Employees Assn.
v. State of Karnataka also cannot be made
subject-matter of review proceeding as no
such contention was canvassed before the
Court when the impugned decision was
rendered. On the other hand the petitioners
were absorbed as Clerks by the Respondentbank after their temporary tenure ended on
completion of earlier project. That may be the
reason why no allegation was made about
anti-labor policy of the Respondent-bank when
appeals were argued before the Court. For all
these reasons, the Review Petitions are
dismissed on merits."

20. In view of the aforesaid, the review
applicant cannot be permitted to raise the new
grounds/arguments in review jurisdiction,
which was not canvassed in the second appeal.

21. The judgment dated 24.11.2017, does
not suffer from any apparent error of law or on
any other ground legally permissible for
exercise of review jurisdiction.

22. For the aforesaid reasons, the review
application is devoid of merit and is rejected.
----------
(2021)09ILR A708
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.09.2021

BEFORE

THE HON'BLE JASPREET SINGH, J.

Second Appeal No. 554 of 1979

Satish Kumar ...Appellant
Versus
Ram Kishore ...Respondent