# Ramesh Kumar Sharma v. M/S Gool Poput & Ors

- **Citation:** (2021) 9 ILRA 676
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-02
- **Case number:** Second Appeal No. 176 of 1989
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-kumar-sharma-v-m-s-gool-poput-ors-47462
- **Pages:** 12

## Headnote

Radhey
Shyam,
R.Dixit,
R.
Dwivedi,
Shashwat Kishore Chaturvedi

A. Civil Law-Code of Civil Procedure, 1908Section 100/115-land dispute-applicants
instituted a suit praying that defendantsappellants
may
be
restrained
from
interfering with the possession over the
plot shown by letters 'ABCD'-trial court
decreed the suit of the applicants for the
land
shown-appellant
preferred
an
appeal-appellate
court
confirmed
the
judgement of the trial court holding that
the land 'ABCD' are covered by lease deed,
hence they are the owner of the same-the
Court found illegality committed by the
court below in decreeing the suit without
getting the property in dispute identified
while deciding the substantial question of
law on which the appeal was admitted-the
court did not frame any substantial
question of law of remand, no grounds has
been taken by the applicants in the memo
of review petition that no substantial
question of law of remand was framed,
accordingly, the judgment under review is
not sustainable.(Para 1 to 46)

The review application is dismissed. (E-6)

List of Cases cited:

## Text

676 INDIAN LAW REPORTS ALLAHABAD SERIES
facie, abuse of process law which needs to
be checked.

9. For all the reasons, afore-stated, the
writ petition is dismissed.
----------
(2021)09ILR A676
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Second Appeal No. 176 of 1989

Ramesh Kumar Sharma ...Appellant
Versus
M/S Gool Poput & Ors. ...Respondents

Counsel for the Appellant:
Pradeep Chandra, N.B. Nigam, R.M. Singh,
R.M. Singh, R.N. Singh, Raj Mohan Saggi,
Rama Nand Gupta

Counsel for the Respondents:
Radhey
Shyam,
R.Dixit,
R.
Dwivedi,
Shashwat Kishore Chaturvedi

A. Civil Law-Code of Civil Procedure, 1908Section 100/115-land dispute-applicants
instituted a suit praying that defendantsappellants
may
be
restrained
from
interfering with the possession over the
plot shown by letters 'ABCD'-trial court
decreed the suit of the applicants for the
land
shown-appellant
preferred
an
appeal-appellate
court
confirmed
the
judgement of the trial court holding that
the land 'ABCD' are covered by lease deed,
hence they are the owner of the same-the
Court found illegality committed by the
court below in decreeing the suit without
getting the property in dispute identified
while deciding the substantial question of
law on which the appeal was admitted-the
court did not frame any substantial
question of law of remand, no grounds has
been taken by the applicants in the memo
of review petition that no substantial
question of law of remand was framed,
accordingly, the judgment under review is
not sustainable.(Para 1 to 46)

The review application is dismissed. (E-6)

List of Cases cited:

1. Naba Kishore Mohanta Vs.Janardan (2001)
92 R.D. 26 SC
2. Askok Rangnath Nagar Vs Srikant Govind Rao
(2015) AIR SCW 6318 SC
3. K.K. Kanan Vs Koolivathukkal (2010) AIR
SCW 156 SC
4. Lisamma Vs Karthiyayan (2015) AIR SC 2824
5. Sayeeda Rahimunnisa Vs Malan Bi (2016) SC
4653
6. Municipal Corpn. Vs Surendra Singh (2008) 4
AWC 3414
7. P. Purushottam Vs Pratap Steel (2002) 2 SCC
686
8. Thyang Rajan & ors.. Vs Vinugopal Swami
(2004) AIR SC 1913
9. Tamil Nadu Electricity Board & anr. Vs N.
Raju Reddiear & anr. (1997) AIR SC 1005
10. Ram Sahu(Dead) thru L.Rs. & ors.. Vs Vinod
Kumar Rawat & ors.. (2020) SCC Online SC 896
11. Bhavnagar University Vs . Palitana Sugar Mill
Pvt. Ltd. (2003) AIR SC 511
12. Lily Thomoas etc. Vs U.O.I. & ors. (2000)
AIR SC 1650
13. St. of Haryana & ors. Vs Mohinder Singh &
ors. (2003) 1 AWC 567 SC
(Delivered by Hon'ble Saral Srivastava, J.)

 Order on Civil Misc. Review Petition
No.178479 of 2011.

1. Heard Sri Shashi Nandan, learned
Senior Counsel assisted by Sri S.K.
Chaturvedi, Advocate on behalf of reviewapplicant, Sri Satish Chandra Mishra, Sri
Navin Sinha, and Sri M.C. Chaturvedi
9 All Ramesh Kumar Sharma Vs. M/S Gool Poput & Ors.
677
learned Senior Counsel assisted by Sri
Kapil Misra, Sri Ramanand Gupta, and Sri
Vineet Sankalp learned counsel for the
defendant-appellant.

2. The present review petition has
been filed by the plaintiffs-respondents
(hereinafter referred to as 'applicants')
praying for the review of the judgment of
this Court dated 25.05.2011 whereby this
Court has allowed the appeal and remanded
the matter back to decide the same after
giving the full opportunity of hearing to the
parties and after getting the property in
dispute identified.

3. The necessary facts for the present
case detailed in the judgment dated
25.05.2011 are as under:-

4. The applicants instituted a suit
praying
that
defendants-appellants
(hereinafter referred to as appellants) may
be restrained from interfering with the
possession over the plot shown by letters
'A, B, C & D' in the map attached with the
plaint and boundaries given at the foot of
the plaint.

5. The plaint case was that the father
of the applicant E.M. Boyce was a
permanent lessee of three Bighas, four
Biswas equivalent to two acres situated in
Civil Lines under a lease deed dated
01.09.1919
executed
by
Radhabai
Zamindaria, widow of one Harlal Bhorey.
There was a stipulation in the lease deed
that lessees have no right to transfer the
aforesaid land without permission of
Zamindaria. Subsequently, Smt. Sarjoobai
daughter of Radhabai on 05.06.1942
deleted the clause in the lease deed which
prohibited the applicants to transfer the
lease without permission of Zamindaria. A
document to this effect was signed by Sri
Rewa Shankar Bhayal as 'Muktar-e-am' of
Smt. Sarjoobai. A further case in the plaint
was that the leased plot was part and parcel
of a big plot whose number was 158 in the
settlement of 1865. The said plot was
divided into 22 plots in the settlement year
of 1297 and the land of three bighas and
four Biswas was converted into plot
nos.296, 297, and 298 in the settlement of
1346 fasli. The applicants are in possession
of the aforesaid plots since 1919. It is
further stated in the plaint that the appellant
purchased
the
aforesaid
land
from
defendant no.2 (Rewa Shankar Bhayal),
and
thereafter,
they
submitted
an
application before the S.D.O. concerned for
demarcation. The Kanoongo, thereafter,
inspected the spot for demarcation of land
purchased by appellants, and the same was
done on 14.03.1982.

6. The appellants contested the suit by
filing a written statement contending
interalia that the applicants are neither
lessee nor in possession of plots marked by
letters A, B, C & D and red lines in the map
attached to the plaint. The appellants also
denied the right of applicants over the land
shown by letters C, G, K & J. The
appellants further pleaded that the land
shown by letters A, B, C & D in the map
attached with the plaint was never leased
out under the said lease, and boundaries
given in Suit No.441 of 1993 do not tally
with the lease dated 01.09.1919. Besides
the above averments, the appellants took
several other pleas and prayed for the
dismissal of the suit.

7. The trial court by judgment and
order dated 30.07.1983 decreed the suit of
the applicants for the land shown by letters
A, B, C, & D, but dismissed the suit for the
land shown by letters C, G, K & J. The trial
court also held that the land shown by
678 INDIAN LAW REPORTS ALLAHABAD SERIES
letters A, B, C & D belongs to the
applicants and they are in possession over
the same.

8. Feeling aggrieved by the judgment of
the trial court, the appellants preferred Civil
Appeal before the District Judge, Jhansi. The
applicants filed a cross objection against the
judgment and order passed by the trial court.
The appellate court by judgment and order
dated 18.10.1988 confirmed the judgment of
the trial court and dismissed the appeal filed
by the appellants as well as the cross
objection of the applicants. The appellate
court held that the land shown by letters A, B,
C & D are covered by lease deed dated
01.09.1919, hence, applicants are the owner
of the same. The appellate court further held
that Rewa Shanker Bhayal had no right to
transfer the land shown by letters A, B, C &
D to the appellants. Consequently, appellants
have no right over the land-based on sale
deed executed by Rewa Shanker Bhayal in
their favour.

9. Feeling aggrieved by the order of the
appellate
court
dated
18.10.1988,
the
appellant preferred the present second appeal.

10. The record of the case reveals that
the present second appeal was heard on
admission on 18.01.1989, on which date
this Court while admitting the appeal
passed the following order:-

"Admit.

Issue notice.

The substantial question of law is
involved in this appeal is question no.4
framed as substantial question of law in the
appeal."

11. The substantial question no.4
framed in the memo of appeal reads as
under:-

"4. Whether the learned lower
appellate court is justified placing reliance
of the alleged admission made by Smt.
Sarju Bai in the plaint of the suit no.441 of
1933, without the plaint is being proved in
accordance with law?"

12. Thus, it is clear from the order
dated 18.01.1989 that this Court has
admitted the appeal on the substantial
question of law no.4 framed in the memo of
appeal.

13. The appeal was decided by this
Court by judgment and order dated
25.05.2011whereby this court set aside the
judgment
of
appellate
court
dated
18.10.1988 and judgment and decree dated
30.07.1983 passed by the trial court. The
operative portion of the judgment and order
dated 25.05.2011 reads as under:-

" In such circumstances, I am of
opinion that courts below was not justified
in granting injunction in favour of plaintiffrespondent.
In
case
there
was
no
identification of land it was the duty of the
courts below to have identification through
issuance of commission but admittedly,
from the record it appears that courts
below have not taken this endevour to get
the property identified, therefore, in my
opinion, the judgement and order passed by
courts below dated 10.10.1988 passed by
Additional District and Sessions Judge
(Special Judge, E.C. Act) and judgement
and decree dated 30.7.1983 passed by
Munsif
Magistrate,
Jhansi
are
not
sustainable in law, therefore, it is hereby
quashed. The present appeal is allowed and
appeal is remanded back to trial court to
decide
the
same
after
giving
full
opportunity to the parties and after getting
property in dispute identified. As the matter
is very old and the parties are litigating
9 All Ramesh Kumar Sharma Vs. M/S Gool Poput & Ors.
679
from 1982, therefore, it will be appropriate
that the trial court may decide the suit
within a period of six months from the date
of production of certified copy of this
order.

No order as to costs."

14. Learned Senior Counsel for the
applicants has firstly submitted that no
substantial question of law was formulated
by the Court as required under Section
100(4) of C.P.C. at the time of admission of
appeal, hence, there is a palpable error
committed by the Court in deciding the
second appeal without complying with the
requirement of Section 100 (4) of C.P.C.

15. He further submits that according
to Section 100 (5) of C.P.C., the
jurisdiction of the Court is to hear the
appeal on the substantial question of law so
formulated at the time of admission of
appeal, and the Court is under obligation to
permit the respondents, at the time of the
hearing, to argue that case does not involve
such question. He further submits that
though the proviso appended to Section
100 (5) of C.P.C. vests the power in the
Court to hear the appeal on any other
substantial question of law not formulated
by it at the time of admission of appeal,
that power can be exercised by the High
Court subject to compliance of stipulation
contained in the proviso to Section 100 (5)
of C.P.C. which means that the Court has to
record reasons for formulating another
substantial question of law which, in the
opinion of the Court, is involved in the
case. Accordingly, he submits that the
Court in the instant case without recording
reasons proceeded to formulate substantial
question of law relating to the identity of
the
land
and
decided
the
same.
Accordingly, the submission is that the
Court did not comply with the requirement
of proviso to Section 100 (5) of C.P.C.

16. Further, elaborating the aforesaid
submission, he contends that no substantial
question of law relating to identifiability of
land was involved in the second appeal as
no plea has been raised by the applicants in
the written statement that property in
dispute is not identifiable nor any issue was
framed by the trial court in respect of the
identity of land in dispute, and hence, there
is an error of law on the face of record
calling for intervention by this Court in the
exercise of its power of review under Order
47 Rule 1 of C.P.C.

17. He further submits that the
question of the identity of land is a question
of fact and not a substantial question of
law, therefore, this Court has erred in
interfering with the judgement and order of
the trial court as well as appellate court and
allowed the appeal.

18. He also contends that the order
under review has been passed without
hearing the applicants and thus, a ground
for review is also made out.

19. On the point of non-framing of the
substantial question of law, learned Senior
Counsel for the applicants has relied upon
the following judgments:-

I. Naba Kishore Mohanta Vs.
Janardan 2001 (92) R.D. 26 (SC);

II. Ashok Rangnath Nagar Vs.
Srikant Govind Rao 2015 AIR S.C.W.
6318 (SC);

III.
K.K.
Kanan
Vs.
Koolivathukkal 2010 AIR S.C.W. 156
(SC).
680 INDIAN LAW REPORTS ALLAHABAD SERIES

20. On the issue that question of law
relating to the identity of property is the
question of fact, learned Senior Counsel for
the applicants has placed reliance upon the
judgment of this Court in the case of
Lisamma Vs. Karthiyayan 2015 AIR SC
2824. On the question that the Court did
not frame any question of law for remand,
he has placed reliance upon the judgements
in the cases of Sayeeda Rahimunnisa Vs.
Malan Bi 2016 SC 4653, Municipal
Corporation Vs. Surendra Singh 2008(4)
A.W.C. 3414, P.Purushottam Vs. Pratap
Steel 2002 (2) S.C.C. 686 and Thyang
Rajan and Others Vs. Vinugopal Swami
2004 AIR S.C. 1913.

21.

Rebutting
the
aforesaid
submission, learned Senior Counsel for the
appellant submits that earlier in the case,
applicants had engaged Sri Radhey Shyam
Dwivedi,
Advocate,
and
Sri
Rajesh
Dwivedi, Advocate as their counsel. He
submits that the judgment of this Court
reveals that learned counsel for the
applicants (respondents in appeal) was
heard by the Court, and therefore, the
review petition by another counsel Sri N.B.
Nigam is not maintainable. He further
submits that now presently, even the
counsel, who has filed the review petition,
Sri N.B. Nigam is not representing the
applicants, and they are being represented
by Sri S.K. Chaturvedi, Advocate who has
filed
Vakaltnama
on
27.10.2016.
Accordingly, he submits that the practice of
changing Advocate while filing the review
petition has been deprecated by the Apex
Court in the case of Tamil Nadu Electricity
Board and Another Vs. N. Raju Reddiear
and Another AIR 1997 SC 1005 wherein
the Apex Court has held that review
petition cannot be entertained at the behest
of a counsel or a person, who had not
appeared before the Court or was not a
party in the main case, therefore, the review
petition is liable to be dismissed at the
threshold in view of the judgment of Apex
Court. He places paragraph 3 on page 8 of
the judgment under review to point out that
the Court has noted the contention of
learned
counsel
for
the
respondents,
therefore, the review petition could have
been filed only by the counsel who was
representing the applicants originally, as he
is the best person to state as to whether the
argument advanced herein by the learned
Senior Counsel for the applicants was ever
raised by him or not.

22. He further submits that earlier
counsel Sri Rajesh Dwivedi has filed an
affidavit on record wherein he has stated
that he was engaged only to assist Sri
Radhey Shyam Dwivedi, Advocate, who
had died in January 2008. It is further
stated in the affidavit that on the date of
hearing of the case, he did not appear
before the Court since he was confined to
bed due to a fracture in his leg. Paragraphs
1 to 5 of the affidavit are being extracted
herein below:-

"1. That, the deponent was
engaged in the above mentioned second
appeal to assist Sri Radhey Shyam
Advocate, on behalf of the respondents.

2.
That
Sri
Radhey
Shyam
Advocate had died in the month of January,
2008.

3. That thereafter the respondents
had taken record of their case from the
chamber of late Radhey Shyam, Advocate
in end of April, 2011 for engagement of
another counsel.

4. That the deponent was not in
position to appear in Second Appeal on
9 All Ramesh Kumar Sharma Vs. M/S Gool Poput & Ors.
681
25.05.2011 as the applicant was confined
to bed due to fracture of his leg and as such
the deponent could not inform the court
that the deponent had no instructions to act
as counsel in appeal.

5. That after the death of Sri
Radhey Shyam Advocate, the respondents
never contacted to deponent for argument
of the case."

23. He submits that Sri Rajesh Dwivedi,
Advocate, who was also counsel in the case, is
a practicing Advocate, and therefore, in such
circumstances, the review petition ought to
have been filed by Sri Radhey Shyam
Dwivedi, Advocate. He submits that veracity
of the affidavit of Sri Radhey Shyam Dwivedi
cannot be verified, and a bald averment has
been made by Sri Rajesh Dwivedi, Advocate
that he did not appear before the court on the
day of hearing of case due to a fracture in his
leg and no documentary evidence relating to
his treatment was filed by Sri Rajesh Dwivedi,
Advocate to substantiate said averment. He
submits that no reliance can be placed upon
the alleged affidavit of Sri Rajesh Dwivedi
Advocate in the absence of any investigation
enquiring about the veracity of the affidavit or
any material on record to prove that the
affidavit of Sri Rajesh Dwivedi is genuine. He
further contends that the affidavit of Rajesh
Dwivedi, Advocate is a device to get away
with the objection of non-maintainability of
review petition by other counsel.

24. He submits that once the Court
has noted in its order that the submission
had been advanced by counsel for the
applicant, the said recital in the order is to
be taken as true unless there is any material
contrary to it on record. He further submits
that this Court while admitting the appeal
has formulated the substantial question of
law extracted above which has been noted
by the Court on page 4 in the judgment,
and thereafter, it proceeded to decide the
appeal.

25. He further submits that the Court can
exercise its power of review only when it falls
within the parameters of Order 47 Rule 1 of
C.P.C., and the present case does not meet the
requirement of Order 47 Rule 1 of C.P.C.,
hence, the Court should refrain from
exercising its power under Order 47 Rule 1 of
C.P.C. He further submits that the submission
of learned counsel for the appellants that the
Court has not framed any substantial question
of law at the time of admission of appeal is
incorrect and against the record since the order
dated 18.01.1989 reflects that the appeal has
been admitted on the substantial question of
law no.4 framed in the memo of appeal.

26. He further submits that the Court has
noted the substantial question of law framed at
the time of admission of appeal in the
judgement, and thereafter, it proceeded to
decide the appeal on merit, and while deciding
the substantial question of law, the Court
found that the judgement of both the courts
below is erroneous for the reason that the suit
could not have been decreed without
identification of the property in dispute, and
accordingly, it set aside the judgment of both
the courts below and remanded the matter
back. He further submits that in the case of
Ram Sahu (Dead) through L.Rs. and Others
Vs. Vinod Kumar Rawat and Others 2020
SCC Online SC 896, the Apex Court held that
an order can be reviewed by a Court only on
the prescribed ground mentioned in the order
under Order 47 Rule 1 of C.P.C. In this
respect, he has placed reliance upon paragraph
34 of the judgment which is being extracted
hereinbelow:-

"34. To appreciate the scope of
review, it would be proper for this Court to
682 INDIAN LAW REPORTS ALLAHABAD SERIES
discuss the object and ambit of Section 114
CPC as the same is a substantive provision
for review when a person considering
himself aggrieved either by a decree or by
an order of Court from which appeal is
allowed but no appeal is preferred or
where there is no provision for appeal
against an order and decree, may apply for
review of the decree or order as the case
may be in the Court, which may order or
pass the decree. From the bare reading of
Section 114 CPC, it appears that the said
substantive power of review under Section
114 CPC has not laid down any condition
as the condition precedent in exercise of
power of review nor the said Section
imposed any prohibition on the Court for
exercising its power to review its decision.
However, an order can be reviewed by a
Court only on the prescribed grounds
mentioned in Order 47 Rule 1 CPC, which
has
been
elaborately
discussed
hereinabove. An application for review is
more restricted than that of an appeal and
the Court of review has limited jurisdiction
as to the definite limit mentioned in Order
47 Rule 1 CPC itself. The powers of review
cannot be exercised as an inherent power
nor can an appellate power can be
exercised in the guise of power of review."

27. He further submits that the fact
whether learned counsel for respondents
had raised any argument that the question
of identification of land is a question of fact
and is not a substantial question of law at
the time of hearing of appeal could only be
certified by counsel who appeared in the
case at the time of the hearing, and since
the counsel who appeared in the case for
the applicants has not filed review petition
certifying
that
he
had
raised
the
aforementioned argument at the time of the
hearing, therefore, this question cannot be
raised by the counsel for the applicants. He
submits that the applicants want rehearing
of appeal in the garb of review application
which is beyond the scope of review since
it is settled in law that the power of review
can be exercised only if there is an error
apparent on the face of the record, and an
error which has to be searched and fished
out is not an error apparent on the face of
the record.

28. Thus, he submits that no ground
for review is made out and the review
petition deserves to be dismissed.

29.

I
have
considered
rival
submissions of the parties and perused the
record.

30. The fact as emanates from the
record reveals that Sri Radhey Shyam
Dwivedi
and
Rajesh
Dwivedi
were
counsels representing the applicants. The
Court noted the submission advanced by
the learned counsel for the respondents in
the judgment, therefore, in view of the
judgment of Apex Court in the case of
(Tamil
Nadu
Electricity
Board
and
Another) (supra), the review petition at the
behest
of
another
counsel
is
not
maintainable. Paragraph 1 of the judgment
is being extracted hereinbelow:-

"1. It is a sad spectacle that new
practice
unbecoming
of
worthy
and
conducive to the profession is cropping up.
Mr.
Mariaputham,
Advocate-on-Record
had filed vakalatnama for the petitionerrespondent when the special leave petition
was filed. After the matter was disposed of,
Mr. V. Balachandran, Advocate had filed a
petition for review. That was also dismissed
by this Court on April, 24, 1996. Yet
another advocate, Mr. S.U.K. Sugar, has
now been engaged to file the present
application styled as "application for
9 All Ramesh Kumar Sharma Vs. M/S Gool Poput & Ors.
683
clarification", on the specious plea that the
order is not clear and unambiguous. When
an
appeal/special
leave
petition
is
dismissed, except in rare cases where error
of law or fact is apparent on the record, no
review can be filed; that too by the
advocate on record who neither appeared
nor was party in the main case. It is
salutary to note that Court spends valuable
time in deciding a case. Review petition is
not, and should not be, an attempt for
hearing the matter again on merits.
Unfortunately, it has become, in recent
time, a practice to file such review petitions
as a routine; that too, with change of
counsel, without obtaining consent of the
advocate on record at earlier stage. This is
not conducive to healthy practice of the Bar
which has the responsibility to maintain the
salutary practice of profession. In Review
Petition No.2670/96 in CA No.1867/92, a
Bench of three Judges to which one of us,
K. Ramaswamy,J., was a member, had held
as under:

"The
record
of
the
appeal
indicates that Shri Sudarsh Menon was the
Advocate-on-Record when the appeal was
heard and decided on merits. The Review
Petition has been filed by Shri Prabir
Chowdhury who was neither an arguing
counsel when the appeal was heard nor
was he present at the time of arguments. It
is unknown on what basis he has written
the grounds in the Review Petition as if it is
a rehearing of an appeal against our order.
He did not confine to the scope of review. It
would be not in the interest of the
profession to permit such practice. That
part, he has not obtained "No Objection
Certificate" from the Advocate-on-Record
in the appeal, in spite of the fact that
Registry
had
informed
him
of
the
requirement for doing so. Filing of the "No
Objection Certificate" would be the basis
for him to come on record. Otherwise, the
Advocate-on-Record is answerable to the
Court. The failure to obtain the "No
Objection Certificate" from the erstwhile
counsel has disentitled him to file the
Review Petition. Even otherwise, the
Review Petition has no merits. It is an
attempt to reargue the matter on merits.

On these grounds, we dismiss the
Review Petition".

31. In the present case, it is worth
noticing that the facts detailed above reflect
that the conduct of the applicants is
mischievous and not fair for the reason that
the Court has recorded in the judgment the
contention advanced by the learned counsel
for the applicants and to wriggle out the
said fact recorded by the Court, applicants
have filed the affidavit of Sri Rajesh
Dwivedi, Advocate sworn on 25.04.2013
after about 2 years from the date of filing
the review petition stating therein that he
was engaged as assisting counsel to Sri
Radhey Shyam Dwivedi, Advocate and on
the date of hearing, he had fracture in leg
without
bringing
any
documentary
evidence on record relating to his treatment
which can demonstrate that he had fracture
in leg. The affidavit of Sri Rajesh Dwivedi,
Advocate had been filed after two years
from the date of filing of the review
petition to meet out the objection that the
review petition is not maintainable as it has
been filed by some other counsel and not
the counsel who was heard at the time of
hearing of the appeal. Further, from the
averments made in the affidavit of Sri
Rajesh Dwivedi, Advocate, it is manifest
that Sri Rajesh Dwivedi, Advocate is still a
practicing Advocate and he did not dare to
come before the Court and state that the
affidavit has been sworn by him and the
averments
made
therein
are
correct,
684 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, in such circumstances, this Court
is not inclined to accept the affidavit of Sri
Rajesh Dwivedi, Advocate and averments
contained therein, more so, when the Court
has noted the contentions advanced by the
counsel for the applicants in the judgment.

32. At this stage, it would be apt to
refer to the judgment of the Apex Court in
the case of Bhavnagar University Vs.
Palitana Sugar Mill Pvt. Ltd. AIR 2003
SC 511 wherein the apex court observed
that statement of facts as to what transpired
at the time of hearing recorded in the
judgment of the Court are conclusive of the
facts so stated and no one can contradict
such statements by affidavit or other
evidence. In this regard, the relevant extract
of paragraph 61 of the judgment of the
Apex
Court
is
being
reproduced
hereinbelow:-

"61...statements of fact as to what
transpired at the hearing, recorded in the
judgment of the court, are conclusive of the
facts so stated and no one can contradict
such statements by affidavit or other
evidence. If a party thinks that the
happenings in court have been wrongly
recorded in a judgment, it is incumbent
upon the party, while the matter is still
fresh in the minds of the Judges, to call the
attention of the very Judges, who have
made the record to the fact that the
statement made with regard to his conduct
was a statement that had been made in
error
(Per
Lord
Buckmaster
in
Madhusudan v. Chandrabati, AIR 1917 PC
30). That is the only way to have the record
corrected. If no such step is taken, the
matter must necessarily end there. Of
course a party may resile and an Appellate
Court may permit him in rare and
appropriate
cases
to
resile
from
a
concession
on
the
ground
that
the
concession
was
made
on
a
wrong
appreciation of the law and had led to
gross injustice; but, he may not call in
question the very fact of making the
concession as recorded in the judgment."

33. In the instant case, the matter was
argued on behalf of applicants by original
counsel, and review was filed by Sri N.B.
Nigam, Advocate who was not the original
counsel of the applicants, and even after
filing the review, the applicants have
changed the counsel and engaged a new
counsel Sri S.K. Chaturvedi. Therefore, this
court is of the view that the review
application is not maintainable.

34. Now, coming to the other
contention advanced by the learned counsel
for the applicants, it would be pertinent to
refer to the judgment of Apex Court
wherein it has been held that the power of
review can be exercised within the
parameters provided in Order 47 Rule 1 of
C.P.C. In the case of Lily Thomas etc. Vs.
Union of India and Others AIR 2000 SC
1650, the Apex Court has held that the
power of review can be exercised within
the limits of the statute.

35. In this regard, it would also be
relevant to refer to paragraph no. 3 & 5 of
the judgment of Apex Court in the case of
State of Haryana and Others Vs. Mohinder
Singh and Others 2003 (1) AWC 567 SC
which is being extracted hereinbelow:-

"3. Learned Additional Solicitor
General appearing for the appellant-State
strongly contended that the High Court
could not have passed the order under
challenge in the purported exercise of its
powers of review and the order under
challenge is liable to be set aside on this
ground alone, dehors even the infirmities in
9 All Ramesh Kumar Sharma Vs. M/S Gool Poput & Ors.
685
the ultimate decision on merits. Reliance
has been placed in support thereof on the
decision in Parsion Devi and others v.
Sumitra Devi and others, JT 1997 (8) SC
480, wherein it has been observed as
follows:-

"9. Under Order XLVII, Rule 1,
C.P.C., 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 XLVII, Rule 1,
C.P.C. In exercise of the jurisdiction under
Order XLVII, 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."

10. Considered in the light of this
settled position we find that Sharma, J.,
clearly overstepped the jurisdiction vested
in the Court under Order XLVII, Rule 1
C.P.C. The observations of Sharma, J., that
"accordingly, the order in question is
reviewed and it is held that the decree in
question was of composite nature wherein
both
mandatory
and
prohibitory
injunctions were provided" and as such the
case was covered by Article 182 and not
Article 181 cannot be said to fall within the
scope of Order XLVII, Rule 1 C.P.C. There
is a clear distinction between an erroneous
decision and an error apparent on the face
of the record. While the first can be
corrected by the higher forum, the latter
only can be corrected by exercise of the
review jurisdiction."

.........

5. We have carefully considered
the
submissions
of
learned
counsel
appearing on either side. The Division
Bench in the High Court, in our view,
completely overstepped the limits of its
review jurisdiction and on the face of it
appears to have proceeded as though it is a
rehearing of the whole petition which had
been earlier finally disposed of. It has often
been reiterated that the scope available for
a litigant invoking the powers of review is
not one more chance for rehearing of the
matter already finally disposed of. The
course adopted in this case by the High
Court appears to be really what has been
held by this Court to be not permissible. On
this ground alone, without expressing any
views on the merits of the claim, the order
of the High Court dated 14.5.1999 is set
aside and the original order dated
14.5.1998 shall stand restored. While
noticing some of the submissions made on
merits by either side, we consider it
appropriate to place on record that even
the learned counsel for the appellant could
not seriously dispute the position that the
respondents would at any rate be entitled to
be placed on the 'first higher standard pay
scale' and that to this extent atleast, the
respondents'
claim
would
deserve
consideration. The appeals are allowed in
the above terms. No order as to costs."

36. Now, so far as the first contention
of learned counsel for the applicant that the
Court has not proceeded to frame any
question of law at the time of admission of
appeal, the said contention on the face of
the record is wrong and incorrect. As noted
above, this Court has admitted the appeal
on the substantial question of law no.4
framed in the appeal, therefore, the
judgment relied upon by the learned
counsel for the applicants on the point that
non-framing of the substantial question of
686 INDIAN LAW REPORTS ALLAHABAD SERIES
law by the Court at the time of admission
of appeal amounts to an error apparent on
the face of the record which calls for
intervention by this court in the exercise of
the power of Review are not applicable in
the facts of the instant case.

37. So far as the second contention
advanced by the learned counsel for the
applicants that proviso to Section 100(5)
of C.P.C. was not adhered to by the Court
in deciding the appeal, since the Court has
not recorded any reason in framing the
question of the identity of the land, and
further the question of identification of
land is a question of fact, therefore, the
Court has committed an error which is
apparent on the face of the record,
therefore, the present is a case falling
within the ambit of Order 47 Rule 1 of
C.P.C., the said submission is also not
sustainable for the reason that the Court
while deciding the appeal has noted the
substantial question of law framed at the
time of admission of appeal in the 6th line
from the top at page 4 of the judgement
under review, and thereafter, proceeded to
decide the appeal.

38. While deciding the substantial
question of law on which the appeal was
admitted, the Court found the illegality
committed by the court below since the
identity of the land in question was not
ascertained and accordingly, it formed an
opinion that the court below had erred in
law in decreeing the suit without getting the
property in dispute identified.

39. The perusal of judgment discloses
that the Court did not frame any other
substantial question of law and had decided
the appeal only on the question of law so
framed at the time of admission of appeal,
and therefore, there does not arise any
question of compliance of proviso to
Section 100 (5) of C.P.C.

40. The judgment relied upon by the
learned counsel for the applicants in the
case of Lisamma (supra) on the point that
question of the identity of property is a
question of fact is not applicable in the
facts of the present case. Since the Court
has not framed any substantial question of
law regarding the identity of the land, the
Court, while deciding the question of law
on which appeal was admitted, found
illegality committed by the court below in
not getting the land identified while
decreeing the suit.

41. It is settled in law that Court can
exercise its power of review only when
there is an error apparent on the face of the
record and an error which is to be fished
out by a process of reasoning cannot be
said to be an error apparent on the face of
the record. Hence, it implies that the
reviewing court has no power to review the
judgment where the error in the judgment is
to be searched out by a process of
reasoning.

42. This Court is of the opinion that to
test the aforesaid contention of learned
counsel for the applicants, a process of
reasoning has to be applied which is
beyond the scope of review as under the
power of review, the Court cannot re-hear
the appeal.

43. At this stage, it would be relevant
to note that the appellants have taken
specific plea in paragraphs 17 and 19 of the
written statement wherein they have
disputed the identification of land, and
further, they have filed an application
before the appellate court, which is marked
as paper no.74, praying for the survey of
9 All Amar Singh Vs. Ranpal Singh & Ors.
687
the land in question and thus, the
submission of learned counsel for the
applicants that identity of land was not
disputed by the applicants is incorrect on
the face of the record.

44. Now, so far as the submission of
learned counsel for the applicants that
Court did not frame any substantial
question of law of remand, it is pertinent to
note that no ground has been taken by the
applicants in the memo of review petition
that no substantial question of law of
remand was framed, accordingly, the
judgment under review is not sustainable.
As no such ground has been taken by the
applicants for reviewing the judgment of
this Court, therefore, this submission
cannot be advanced during the argument.

45. It is worth mentioning that the
Court ought to have framed any issue of
remand or not can be adjudicated only after
hearing the applicants on merit inasmuch as
to ascertain this question, the first question
that would arise for adjudication is whether
the Second Appellate Court on finding that
the judgment of the lower court is not
sustainable in law is devoid of the power to
remand the matter directing the court below
to decide the suit afresh without framing
the issue of remand. To adjudicate the said
question, this Court has to re-hear the
appeal which is beyond the scope of the
Court in the exercise of the power of
review under Order 47 Rule 1 of C.P.C.
Thus, the judgments cited on the point that
no issue of remand was framed therefore
the
judgment
under
review
is
not
sustainable are not applicable in the facts of
the present case.

46. The contention of learned counsel
for the applicants that no opportunity of
hearing was given is also misconceived as
the Court in its judgment has noted the
submissions advanced by the learned
counsel for the applicants, and accordingly,
the said submission is also misconceived

47. Thus, for the reasons given above,
the review application being misconceived
is dismissed with no order as to cost.
----------
(2021)09ILR A687
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.09.2021

BEFORE

THE HON'BLE SIDDHARTH, J.

First Appeal No. 428 of 2019

Amar Singh ...Appellant
Versus
Ranpal Singh & Ors. ...Respondents

Counsel for the Appellant:
Sri Purnendu Prakash Pandey, Sri Chandra
Kumar Rai

Counsel for the Respondents:
Himadari Batra, Sri Kunal Shah, Sri Manoj
Kumar Dhuriya, Sri Syed Fahim Ahmed

A. Civil Law -Code of Civil Procedure,
1908-Section 96-land dispute-appellant
failed to adduce Allotment Certificate and
could not prove the factum of grant of
Lease/Allotment in his favour- if the
receipt for premium is taken to be the
Allotment Certificate itself, in absence of
previous
approval
of
the
Assistant
Collector the same is void ab initio-finally,
the document dated 11.05.1974 was not a
lease,
hence,
it
never
required
cancellation or declaration as a void
document from revenue court.(Para 1 to
66)

The appeal is dismissed. (E-6)

List of Cases cited: