High Court of Punjab and HaryanaRA-RS/9/2021dismissed

Santosh Kumari And ORS v. Jind Improvement Trust And ORS

2024-08-01Mr. Justice Vikas Bahl11 pages

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< "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 review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has 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 over)stepped the jurisdiction vested in the court under Order 47 Rule 1 CPC. The observation of Sharma, J. that "accordingly", the order in question is reviewed and it is held that the decree in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunction were provided" and as such the case was covered by Article the scope of Order 47 Rule 1 CPC. 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 later only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision dated 25.4.

1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J. did record that there was a mistake or an error apparent on the face of the record which not of such a nature, "Which had to be detected by a long drawn process of reasons" and proceeded to set at naught the order of Gupta, J.

9 exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment debtors could have approached the higher forum through appropriate proceedings, to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a "review of the order of petition. In this view of the matter, we are of the opinion that the impugned order of Sharma, J. cannot be sustained and accordingly accept this appeal and set aside the impugned order dated 6.3.1997."

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3", "16. As per settled law, maintainability of a suit is to be seen on the date of filing of the suit. A Court in the interest of justice can mould the relief by taking note of any subsequent development taking place during pendency of the suit. Admittedly, the plaintiffs/ appellants filed the suit for mandatory injunction for issuing mandate to defendant No.1 for allotment of half share of plot No.41 situated in Scheme No.19 in favour of plaintiff and proforma defendant No.3. Relief of permanent injunction as a consequential relief was

also sought restraining defendant No.1 from delivering the possession of the entire plot and issuing sale certificate and executing sale deed in respect of plot in question in favour of defendant No.2 only. The plaintiff/ appellants along with the suit also filed an application for stay under Order 39 Rules 1 and 2 for ad interim injunction. To be noted that, Trial Court while deciding stay application protected the rights of plaintiff/ appellants, with specific observations, that ultimately, if the plaintiffs are found entitled to half share in plot No.41 Scheme No.19, they can get their share from defendant No.2 and they are not going to suffer any irreparable loss in case ad interim injunction is refused.

A Court while deciding ad interim injunction application is simply to see the prima facie case, balance of convenience and irreparable loss caused to the plaintiffs. Since no evidence was adduced by either of the parties, it was difficult for the trial Court to record any definite findings. However, the trial Court while deciding application for ad interim injunction protected rights of plaintiff/ appellants with the following observations:) "On the other hand, even if ultimately it is held that plaintiffs are entitled to 1⁄2 share in the plot No.41 of Scheme No.9, they can get their share from the defendant No.2 later on and they are not going to suffer any irreparable loss in case ad interim injunction is refused."

17.

Admitted case of both the parties is that the possession of the plot was delivered on 20.9.1984 to defendant No.2 after decision of the application for ad interim injunction vide order dated 7.9.1984 vide which the rights of the plaintiff/ appellants had been fully protected subject to the decision of the suit on merits. Since the possession was handed over to defendant No.2 during pendency of the suit and the rights of the plaintiff/ appellants over the suit land had been protected

by the trial Court while deciding the application for ad interim injunction, trial Court was legally justified in deciding issue No.6 regarding maintainability of the suit in favour of the plaintiff.

21.

It has been argued by learned counsel for the respondent that perusal of plaint itself shows that plaintiff/appellants were well aware of the fact that the plot had already been allotted in favour of defendant No.2 as on 15.04.1983 and yet the civil suit which was filed much later i.e. on 18.01.1984 merely sought mandatory injunction without challenging the prior allotment by way of declaration. It is contended that suit was, therefore, not sustainable. I am unable to accept this contention. Merely because the plaintiffs were aware that respondent/ defendant No.2 had been issued the said letter dated 15.04.

1983, would not render the suit as not maintainable, more so when possession was still with the Trust and prayer in the plaint is not only for mandatory injunction but also for permanent injunction restraining the Trust from delivering the possession of the suit land with a further restraint from issuing the sale certificate and for executing the sale deed pursuant thereto in respect of suit property. In the premise, trial Court rightly held that relief of possession of 1⁄2 share of suit land can also be granted to the plaintiffs even if such a formal relief had not been claimed by the plaintiffs either at the first instance when the suit was filed or subsequently by way of amendment."

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