Navabulla Garibulla Pathan. v. Uran Nagarpalika Parishad (Thro. Its Chief Executive Officer).

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IN THE HIGH COURT OF JUDICATURE AT MUMBAI

CIVIL APPELLATE JURISDICTION REVIEW PETITION NO. 9 OF 2015 IN SECOND APPEAL NO. 295 OF 2015 Navabulla Garibulla Pathan ...

Petitioner Vs.

Uran Nagarpalika Parishad Through its Chief Executive Officer ...

Respondent Mr.Uday Warunjikar i/b Mr.Sachin K. Hande, Advocate for Petitioner. Mr.Sachindra B.Shetye, Advocate for Respondent. CORAM :

R. G. KETKAR, J.

DATE : 07th JULY, 2015 P.C. :

.

Heard Mr.Uday Warunjikar, learned Counsel for the petitioner and Mr.Sachindra B.Shetye, learned Counsel for the respondent at length.

2.

By this Petition, the petitioner-original plaintiff has sought review of order dated 06/05/2015 passed by this Court in Second Appeal No. 295 of 2015.

3.

Mr.Warunjikar submitted that in the order dated 07/05/2015, statement made by him on instructions from Mr.Niyaz Navabulla Pathan, son of the petitioner, for withdrawal of the Second Appeal was recorded. He submitted that instead of withdrawal of the Appeal, the petitioner wants to withdraw Regular Civil Suit No. 1/4

52 of 2002 itself. He submitted that if that prayer is not accepted, at least, Suit which is subsequently filed by the petitioner may be decided uninfluenced by the observations made by the Courts below. 4.

On the other hand, Mr.Shetye supported the impugned order. He submitted that the petitioner has instituted substantive Suit against landlord Rajan Narayan Chalke and Respondent - Uran Nagarpalika Parishad for declaration of ownership by way of adverse possession as also for perpetual injunction restraining the defendants from causing obstruction to his possession. During the pendency of that Suit, application for interim relief was taken out which was rejected. Aggrieved by that decision, petitioner has instituted Misc. Civil Appeal No. 11 of 2014 before the District Court and the same is pending. It is in that context, petitioner sought liberty to withdraw the Second Appeal as he has instituted substantive Suit. The withdrawal of the Appeal was upon instructions from Mr.Niyaz Navabulla Pathan, son of the petitioner. He submitted that the Suit was decided on merits and Appeal was also dismissed on merits. He further submitted that no case is made out for reviewing the order. 5.

I have considered the rival submissions made by the learned Counsel appearing for the parties. I have also perused the material on record. It is not the case of the petitioner that statement was wrongly recorded in the order dated 07/05/2015. In fact, having regard to the fact that the petitioner has instituted substantive 2/4

Suit as indicated earlier, prayer was made for withdrawal of the Appeal. Accordingly, prayer was acceded to. Apart from that, even interim order was continued upto and inclusive 30/06/2015 so as to enable the petitioner to obtain appropriate orders in the pending Appeal. That apart, Suit and Appeal were decided on merits against the petitioner. In view thereof, no case is made out for review of the impugned order. In the case of Kamlesh Verma Vs. Mayawati, AIR 2013 Supreme Court, 3301, the Apex Court has held as under : "The jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is 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. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for patent error. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of C.P.C.

6.

In view thereof, Petition fails and the same is dismissed.

7.

At this stage, Mr.Warunjikar submits that next date of hearing of Misc. Civil Appeal No. 11 of 2014 is 23/07/2015. He orally prays that the interim protection granted by this Court by order dated 07/05/2015 may be continued upto 30/07/2015. 3/4

8.

In the order dated 07/05/2015, the assurance of the petitioner to the effect that petitioner will not ask for further extension of time was recorded. In view thereof, oral application is rejected.

(R. G. KETKAR, J.) 4/4