Himachal Pradesh High Court
Surat Ram vs Sudama Ram (Decease Through Lrs) And Ors on 3 January, 2025
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Review Petition No. 148 of 2023
Reserved on: 20.12.2024
Date of Decision: 3rd January 2025
Surat Ram
….Petitioner
Versus
Sudama Ram (decease through Lrs) and ors.
….Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? Yes
For the Petitioner : Mr. G.D. Verma, Sr. Advocate with
Mr. Sumit Sharma, Advocate.
For Respondents No.1(a) : Mr. R.K. Bawa, Sr. Advocate with Mr
to 1(e) Ajay Kumar Sharma, Advocate.
None for respondents No.1(f) to 1(h).
For respondent No.2 : Mr. Tarun Pathak, Deputy Advocate
General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition seeking
the review of the judgment and decree dated 21.09.2023 passed by
this Court in RSA No. 45 of 2007. It has been asserted that the
petitioner raised an objection regarding the tenancy, and this
objection was not considered by the Court while deciding the
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appeal. The petitioner claimed that the original mortgagee, Sh.
Surju, under whom he was a tenant during his lifetime, did not
dispute the claim of Dhuri regarding the tenancy. This vital point
was not considered and adjudicated upon. The plaintiff has no
locus standi to dispute the status of the petitioner. The petitioner
was found to be in physical possession of the suit land. The
plaintiff had made material admissions which were not
considered by the Court. The real point of controversy could not
be adjudicated without impleading all the legal heirs of the
mortgagee, late Sh. Dhuri. The entries in the revenue record were
misread. The jamabandi contained long-standing entries
regarding the status of Surju as a mortgagee. The plaintiff had not
sought a declaration in the suit, and an injunction could not have
been issued without a declaration. The grounds of appeal
preferred before the learned Appellate Court were not dealt with
and determined. The application for the production of additional
evidence was wrongly rejected. The vestment of the ownership
right upon Dhuri was automatic, and the Civil Court had no
jurisdiction to interfere with it. The claim of acquisition of title by
adverse possession was raised but was not considered. The
judgment was passed by the learned Trial Court against a dead
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person and was a nullity. Wrong conclusions regarding the entry
of tenancy of late Dhuri were drawn. The plaintiff did not file any
appeal against the judgment and decree passed by the learned
Additional District Judge, and the finding recorded by the learned
Appellate Court were binding upon him. The Court had committed
material irregularities and illegalities as a result of which the
judgment and decree are to be reviewed; hence, the petition.
2. I have heard Mr G.D. Verma, learned Senior Counsel
assisted by Mr Sumit Sharma, learned counsel for the petitioner,
Mr R.K. Bawa, learned Senior Counsel assisted by Mr Ajay Kumar
Sharma, learned counsel for respondents No.1(a) to 1(e) and Mr
Tarun Pathak, learned Deputy Advocate General, for respondent
No.2.
3. Mr G.D. Verma, learned Senior Counsel for the
petitioner, submitted that there are various irregularities in the
judgment highlighted in the memo of the petition; therefore, he
prayed that the present petition be allowed and the judgment and
decree passed by this Court be reviewed.
4. Mr. R.K. Bawa, learned Senior Counsel for respondents
No.1 (a) to 1(e), submitted that there is no error apparent on the
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face of the record and the scope of the appeal before this Court
was confined to substantial questions of law. The points raised in
the petition do not pertain to substantial questions of law;
therefore, he prayed that the present petition be dismissed.
5. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
6. The scope of the review was explained by the Hon’ble
Supreme Court in State (NCT of Delhi) v. K.L. Rathi Steels Ltd.,
(2024) 7 SCC 315: 2024 SCC OnLine SC 1090, and it was observed at
page 342:
37. Read in conjunction with Section 114CPC, Order 47 Rule
1 thereof has three broad components which need to be
satisfied to set the ball for a review in motion — (i) “who”
means the person applying must demonstrate that he is a
person aggrieved; (ii) “when”, means the circumstances a
review could be sought; and (iii) “why”, means the grounds
on which a review of the order/decree ought to be made.
Finally comes the “what”, meaning thereby the order the
court may make if it thinks fit. Not much attention is
generally required to be paid to components (i) and (ii)
because of the overarching difficulties posed by component
(iii). However, in deciding this reference, component (i)
would also have a significant role apart from the
Explanation inserted by way of an amendment of CPC.
38. Let us now briefly attempt a deeper analysis of the
provision. We are conscious that the provisions relating to
review have been considered in a catena of decisions, but
the special features of these RPs coupled with the fact that
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two Hon’ble Judges of this Court have delivered a split
verdict make it imperative for us not to miss any significant
aspect.
39. A peep into the legislative history would reveal that
Rule 1 of Order 47CPC, which is part of the First Schedule
appended thereto, bears a very close resemblance to its
predecessor statutes, i.e. Section 623 of the Codes of Civil
Procedure of 1877 and 1882. The solitary legislative change
brought about in 1976 in Order 47CPC resulted in the
insertion of an Explanation at the foot of Rule 1, which is at
the heart of the controversy here.
40. The first and foremost condition that is required to be
satisfied by a party to invoke the review jurisdiction of the
court, whose order or decree, as the case may be, is sought
to be reviewed, is that the said party must be someone who
is aggrieved by the order/decree.
41. The words “person aggrieved” are found in several
statutes; however, the meaning thereof has to be
ascertained with reference to the purpose and provisions of
the statute. In one sense, the said words could correspond
to the requirement of “locus standi” in relation to judicial
remedies. The need to ascertain the “locus standi” of a
review petitioner could arise if he is not a party to the
proceedings but claims the order or decree to have
adversely affected his interest. In terms of Order XLVII of
the 2013 Rules read with Order 47CPC, a petition for review
at the instance of a third party to the proceedings too is
maintainable, the quintessence being that he must be
aggrieved by a judgment/order passed by this Court. This is
what has been held in Union of India v. Nareshkumar
Badrikumar Jagad [Union of India v. Nareshkumar
Badrikumar Jagad, (2019) 18 SCC 586]. That is, of course, not
the case here. Normally, in the context of Rule 1 of Order
47CPC, it is that person (being a party to the proceedings)
suffering an adverse order and/or decree who, feeling
aggrieved thereby, usually seeks a review of the
order/decree on any of the grounds outlined therein. The
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circumstances where a review would lie are spelt out in
clauses (a) to (c).
42. Order 47 does not end with the circumstances as
Section 114CPC, the substantive provision, does. Review
power under Section 114 read with Order 47CPC is available
to be exercised, subject to fulfilment of the above
conditions, on setting up by the review petitioner any of the
following grounds:
(i) discovery of new and important matter or evidence;
or
(ii) mistake or error apparent on the face of the record;
or
(iii) any other sufficient reason.
43. Insofar as (i) (supra) is concerned, the review petitioner
has to show that such evidence (a) was actually available on
the date the court made the order/decree, (b) with
reasonable care and diligence, it could not be brought by
him before the court at the time of the order/decree, (c) it
was relevant and material for a decision, and (d) by reason
of its absence, a miscarriage of justice has been caused in
the sense that had it been produced and considered by the
court, the ultimate decision would have been otherwise.
44. Regarding (ii) (supra), the review petitioner has to
satisfy the court that the mistake or error committed by it
is self-evident and such mistake or error can be pointed out
without any long-drawn process of reasoning, and, if such
mistake or error is not corrected and is permitted to stand,
the same will lead to a failure of justice. There cannot be a
fit-in-all definition of “mistake or error apparent on the
face of the record”, and it has been considered prudent by
the courts to determine whether any mistake or error does
exist considering the facts of each individual case coming
before it.
45. With regard to (iii) (supra), we can do no better than
refer to the traditional view in Chhajju Ram [Chhajju
Ram v. Neki, 1922 SCC OnLine PC 11: AIR 1922 PC 112], a
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decision of a Bench of seven Law Lords of the Judicial
Committee of the Privy Council. It was held there that the
words “any other sufficient reason” means “a reason
sufficient on grounds at least analogous to those specified
immediately previously”, meaning thereby (i) and (ii)
(supra). Notably, Chhajju Ram [Chhajju Ram v. Neki, 1922
SCC OnLine PC 11: AIR 1922 PC 112] has been consistently
followed by this Court in a number of decisions starting
with Moran Mar Basselios Catholicos v. Mar Poulose
Athanasius [Moran Mar Basselios Catholicos v. Mar Poulose
Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526].
46. There are recent decisions of this Court which have
viewed “mistake” as an independent ground to seek a
review. Whether or not such decisions express the correct
view need not detain us since the review here is basically
prayed in view of the subsequent event.
xxxxx
J. Other precedents on review
59. Precedents on the aspect of review are legion, and we do
not wish to burden this judgment by tracing all the
decisions. However, only a few that were considered in the
split verdict, some which were cited by the parties before us
and some that have emerged from our research on the
subject and are considered relevant, are discussed/referred
to here.
60. Two of these decisions, viz. A.C. Estates v. Serajuddin &
Co. [A.C. Estates v. Serajuddin & Co., 1965 SCC OnLine SC 295 :
(1966) 1 SCR 235: AIR 1966 SC 935] and Shatrunji v. Mohd.
Azmat Azim Khan [Shatrunji v. Mohd. Azmat Azim Khan,
(1971) 2 SCC 200] were rendered prior to the introduction of
the Explanation in Rule 1 of Order 47CPC. Significantly,
even without the Explanation, substantially the same view
was expressed.
61. In A.C. Estates [A.C. Estates v. Serajuddin & Co., 1965 SCC
OnLine SC 295 : (1966) 1 SCR 235: AIR 1966 SC 935], a Bench
of three Hon’ble Judges of this Court, while dismissing the
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civil appeal and upholding the order of the High Court of
Calcutta, held as follows : (SCC OnLine SC para 16)
“16. … Our attention in this connection is drawn to
Section 29(5) of the Act, which gives power to the
Controller to review his orders and the conditions laid
down under Order 47 of the Code of Civil Procedure. But
this cannot be a case of review on the ground of discovery
of new and important matter, for such matter has to be
something which exists at the date of the order and there
can be no review of an order which was right when made on
the ground of the happening of some subsequent
event (see Kotagiri Venkata Subbamma Rao v. Vellanki
Venkatrama Rao [Kotagiri Venkata Subbamma
Rao v. Vellanki Venkatrama Rao, 1900 SCC OnLine PC 12 :
(1899-1900) 27 IA 197] ).” (emphasis supplied)
62. The next is the decision of a Bench of two Hon’ble
Judges of this Court in Shatrunji [Shatrunji v. Mohd. Azmat
Azim Khan, (1971) 2 SCC 200] . While dismissing an appeal
and upholding the order [Mohd. Azamat Azim
Khan v. Shatrunji, 1963 SCC OnLine All 50] of the Allahabad
High Court, reference was made to “any other sufficient
reason” in Rule 1 of Order 47CPC and the decision
in Kotagiri Venkata Subbamma Rao [Kotagiri Venkata
Subbamma Rao v. Vellanki Venkatrama Rao, 1900 SCC OnLine
PC 12 : (1899-1900) 27 IA 197] whereupon it was held :
(Shatrunji case [Shatrunji v. Mohd. Azmat Azim Khan, (1971)
2 SCC 200], SCC pp. 203-204, para 13)
“13. … the principles of review are defined by the Code,
and the words “any other sufficient reason” in Order 47
of the Code would mean a reason sufficient on grounds
analogous to those specified immediately previously in
that order. The grounds for review are the discovery of
new matters or evidence which, after the exercise of due
diligence, was not within his knowledge or could not be
produced by him at the time when the decree was passed
or order made, or the review is asked for on account of
some mistake or error apparent on the face of the
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record. In Kotagiri Venkata Subbamma Rao v. Vellanki
Venkatrama Rao [Kotagiri Venkata Subbamma
Rao v. Vellanki Venkatrama Rao, 1900 SCC OnLine PC 12 :
(1899-1900) 27 IA 197] Lord Davey at IA p. 205 of the
Report said that ‘the section does not authorise the review
of a decree which was right when it was made on the
ground of the happening of some subsequent event’.”
(emphasis supplied)
63. What was laid down in Netaji Cricket Club [BCCI v. Netaji
Cricket Club, (2005) 4 SCC 741], upon reading Order 47CPC,
can be better understood in the words of the Hon’ble Judge
authoring the judgment. The relevant passages are quoted
hereunder : (SCC pp. 764-65, paras 88-90)
“88. … Section 114 of the Code empowers a court to
review its order if the conditions precedent laid down
therein are satisfied. The substantive provision of law
does not prescribe any limitation on the power of the
court except those which are expressly provided in
Section 114 of the Code in terms whereof it is empowered
to make such order as it thinks fit.
89. Order 47 Rule 1 of the Code provides for filing an
application for review. Such an application for review
would be maintainable not only upon discovery of a new
and important piece of evidence or when there exists an
error apparent on the face of the record but also if the
same is necessitated on account of some mistake or for
any other sufficient reason.
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 “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
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necessitated by way of invoking the doctrine “actus
curiae neminem gravabit”.”
In the next paragraph, their Lordships quoted a portion of
para 35 from the larger Bench decision in Moran Mar
Basselios Catholicos [Moran Mar Basselios Catholicos v. Mar
Poulose Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526] but
held that “the said rule is not universal”.
64. Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4
SCC 741] was followed in Jagmohan Singh v. State of
Punjab [Jagmohan Singh v. State of Punjab, (2008) 7 SCC 38].
It was held there that Rule 1 of Order 47CPC does not
preclude the High Court or a court from taking into
consideration any subsequent event and that if imparting
justice in a given situation is the goal of the judiciary, the
court may take into consideration (of course on rare
occasions) the subsequent events.
65. This Court, in para 20 of the decision in Kamlesh
Verma v. Mayawati [Kamlesh Verma v. Mayawati, (2013) 8
SCC 320 : (2013) 3 SCC (Civ) 782 : (2013) 4 SCC (Cri) 265 :
(2014) 1 SCC (L&S) 96], after surveying previous authorities
and following Chhajju Ram [Chhajju Ram v. Neki, 1922 SCC
OnLine PC 11: AIR 1922 PC 112] and Moran Mar Basselios
Catholicos [Moran Mar Basselios Catholicos v. Mar Poulose
Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526] summarised
the principles of review and illustrated when a review
would be and would not be maintainable. Despite the
observation in Netaji Cricket Club [BCCI v. Netaji Cricket Club,
(2005) 4 SCC 741] limiting Moran Mar Basselios
Catholicos [Moran Mar Basselios Catholicos v. Mar Poulose
Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526], Kamlesh
Verma [State (NCT of Delhi) v. Kartar Singh, 2016 SCC OnLine
SC 1525] thought it fit to agree with the latter decision.
66. Recently, in S. Madhusudhan Reddy v. V. Narayana
Reddy [S. Madhusudhan Reddy v. V. Narayana Reddy, (2022)
17 SCC 255: 2022 SCC OnLine SC 1034], a Bench of three
Hon’ble Judges has accepted the meaning of the ground
“for any other sufficient reason” as explained in Chhajju
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Ram [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11: AIR 1922
PC 112], Moran Mar Basselios Catholicos [Moran Mar
Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC
42: AIR 1954 SC 526] and Kamlesh Verma [State (NCT of
Delhi) v. Kartar Singh, 2016 SCC OnLine SC 1525].
7. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
8. The appeal was admitted on the following substantial
questions of law on 30.5.2007:-
1. Whether presumption of correctness is attached
to the later entries in revenue record and since
entries of possession as a tenant are coming in
favour of late Dhuri defendant No.1, continuously
till the date of filing of suit in the jamabandi
Ex.PA for the year 1990-91 therefore, the claim of
the defendant that he was inducted as a tenant
stand proved?
2. Whether the findings as recorded on the point of
correctness or otherwise of revenue entries by
the courts below are wrong because entries in
jamabandi for the year 1960-61 vide Ext. D-3
have been made on the basis of order for
attestation of jamabandi during the course of
proceedings for attestation of Jamabandi;
therefore, a wrong view has been taken that there
was not a lawful order in this regards?
3. Whether defendant No.1, late Sh. Dhuri being
recorded continuously as a Gair Marusi over suit
land since 1960-61 vide jamabandi Ext.D-3, till
date of filing of the suit; therefore, presumption
of correctness is attached to the later entries, and
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therefore, the deceased Dhuri Ram was a tenant
having been inducted by the Mortgagee Sh. Surju?
4. Whether deceased Sh. Surju, the original
mortgagee under whom Sh. Dhuri Ram was
recorded as a tenant in the year 1960-61 having
not challenged entries in the revenue record
regarding the status of Sh. Dhuri Ram, as a
tenant, therefore, he, as well as his successors,
are estopped by their own admissions,
correctness of revenue entries?
5. Whether the Courts below having failed to take
into consideration the order of collector
settlement dated 1.6.2000 as per Ext.D-6 and the
fact that the respondent had not challenged this
order, therefore, the same is binding upon the
parties?
9. It was laid down by the Hon’ble Supreme Court in P.
Kishore Kumar v. Vittal K. Patkar, 2023 SCC OnLine SC 1483 that the
scope of the second appeal is confined to substantial questions of
law and the High Court cannot become the third Court on facts. It
was observed:
“29. The first appellate court, having examined the facts in
extenso, the High Court ought not to have interfered with
the findings rendered therein by virtue of being, in the
second appeal, a court of law. As was astutely said by this
Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546, a second
appellate court is not expected to conduct a “third trial on
facts” or be “one more dice in the gamble.” The decision
rendered by the first appellate court, not being in violation
of the settled position of law, ought not to have been
interfered with. With utmost respect to the High Court, we
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are constrained to observe that the question framed by it
could be regarded as one of law, if it all, but did not merit
the label of a substantial question of law so as to warrant
interference with the first appellate decree under
section 100 of the CPC.”
10. A similar view was taken in Rashmi Kant Vijay Chandra
v. Baijnath Choubey & Co., 2024 SCC OnLine SC 2549, wherein it was
observed:
“14. This Court in Dnyanoba Bhaurao Shemade v. Maroti
Bhaurao Marnor (1999) 2 SCC 471, while considering the
scope of Section 100 of the CPC, observed:
“10. Having given our anxious consideration to the rival
contentions aforesaid, we find ourselves unable to
sustain the decision rendered by the learned Single
Judge of the High Court for the reasons that follow:
It has to be kept in view that the learned Single Judge
was exercising jurisdiction under Section 100 CPC as
it was amended in 1976. A mere look at the said
provision shows that the High Court can exercise its
jurisdiction under Section 100 CPC only on the basis
of substantial questions of law which are to be
framed at the time of admission of the second appeal,
and the second appeal has to be heard and decided only
on the basis of such duly framed substantial questions of
law. The impugned judgment shows that no such
procedure was followed by the learned Single Judge.
It is held by a catena of judgments by this Court,
some of them being Kshitish Chandra
Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438]
and Sheel Chand v. Prakash Chand [(1998) 6 SCC 683]
that the judgment rendered by the High Court under
Section 100 CPC without following the aforesaid
procedure cannot be sustained. On this short ground
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alone, this appeal is required to be allowed.”
(Emphasis supplied)
15. This exposition came to be followed by this Court
in Narayanan Rajendran v. Lekshmy Sarojini (2009) 5 SCC
264 wherein after tracing out a catena of judgments on
Section 100 of the CPC, it was observed:
“70. Now, after the 1976 Amendment, the scope of
Section 100 has been drastically curtailed and narrowed
down. The High Courts would have jurisdiction to
interfere under Section 100 CPC only in a case where
substantial questions of law are involved, and those
questions have been clearly formulated in the
memorandum of appeal. At the time of admission of the
second appeal, it is the bounden duty and obligation of the
High Court to formulate substantial questions of law, and
then only the High Court is permitted to proceed with the
case to decide those questions of law.” (Emphasis
supplied)
16. While placing reliance on the above observations, this
Court in Hardeep Kaur v. Malkiat Kaur (2012) 4 SCC
344 affirmed that it is the duty of the High Court to frame
substantial questions of law before hearing an appeal under
Section 100 of the CPC and such a second appeal has to be
heard and decided on such substantial question of law.
17. More recently, in Kirpa Ram v. Surendra Deo Gaur (2021)
13 SCC 57 and Suresh Lataruji Ramteke v. Sau. Sumanbhai
Pandurang Petkar 2023 SCC OnLine SC 1210, it was
reiterated that High Courts are required to hear second
appeals under Section 100 of the CPC only on the
satisfaction that there exists a substantial question of law
and the appeal has to be heard on the question so
formulated.
11. This position was reiterated in Jaichand v. Sahnulal,
2024 SCC OnLine SC 3864, wherein it was observed:
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“23. We are thoroughly disappointed with the manner in
which the High Court framed the so-called substantial
question of law. By any stretch of the imagination, it cannot
be termed even a question of law far from being a
substantial question of law. How many times the Apex
Court should keep explaining the scope of a second appeal
under Section 100 of the CPC and how a substantial
question of law should be framed? We may once again
explain the well-settled principles governing the scope of a
second appeal under Section 100 of the CPC.
24. In Navaneethammal v. Arjuna Chetty (1996) 6 SCC
166: AIR 1996 SC 3521, it was held by this Court that the High
Court should not reappreciate the evidence to reach
another possible view in order to set aside the findings of
fact arrived at by the first appellate Court.
25. In Kshitisn Chandra Purkait v. Santhosh Kumar
Purkait, (1997) 5 SCC 438), this Court held that in the Second
Appeal, the High Court should be satisfied that the case
involves a substantial question of law and not a mere
question of law.
26. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao
Marnor, (1999) 2 SCC 471, this Court held:–
“Keeping in view the amendment made in 1976, the
High Court can exercise its jurisdiction under
Section 100, CPC only on the basis of substantial
questions of law which are to be framed at the time of
admission of the Second Appeal and the Second Appeal
has to be heard and decided only on the basis of such
duly framed substantial questions of law. A judgment
rendered by the High Court under
Section 100 CPC without following the aforesaid
procedure cannot be sustained.”
27. This Court in Kondira Dagadu Kadam v. Savitribai Sopan
Gujar, (1999) 3 SCC 722: AIR 1999 SC 2213 held:–
“The High Court cannot substitute its opinion for the
opinion of the first appellate Court unless it is found
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that the conclusions drawn by the lower appellate Court
were erroneous being contrary to the mandatory
provisions of law applicable or its settled position on the
basis of pronouncements made by the Apex Court, or
was based upon inadmissible evidence or arrived at
without evidence.”
28. It is thus clear that under Section 100, CPC, the High
Court cannot interfere with the findings of fact arrived at
by the first Appellate Court, which is the final Court of
Facts, except in such cases where such findings were
erroneous being contrary to the mandatory provisions of
law, or its settled position on the basis of the
pronouncement made by the Apex Court or based upon
inadmissible evidence or without evidence.
29. The High Court in the Second Appeal can interfere with
the findings of the trial Court on the ground of failure on
the part of the trial as well as the first appellate Court, as
the case may be when such findings are either recorded
without proper construction of the documents or failure to
follow the decisions of this Court and acted on assumption
not supported by evidence. Under Section 103, C.P.C, the
High Court has got power to determine the issue of fact.
The Section lays down:–
“Power of High Court to determine issue of fact: In any
Second Appeal, the High Court may, if the evidence on
the record is sufficient to determine any issue necessary
for the disposal of the appeal,-
(a) Which has not been determined by the lower
Appellate Court or both by the Court of first
instance and the lower Appellate Court, or
(b) Which has been wrongly determined by such
Court or Courts by reason of a decision on such
question of law as is referred to in Section 100.”
30. In Bhagwan Sharma v. Bani Ghosh, 1993 Supp (3) SCC
497: AIR 1993 SC 398, this Court held:–
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“The High Court was certainly entitled to go into the
question as to whether the findings of fact recorded by
the first appellate court, which was the final court of
fact, were vitiated in the eye of law on account of non-
consideration of admissible evidence of vital nature.
But, after setting aside the findings of fact on that
ground, the Court had either to remand the matter to the
first appellate Court for a rehearing of the first appeal
and decision in accordance with the law after taking into
consideration the entire relevant evidence on the
records or in the alternative to decide the case finally in
accordance with the provisions of Section 103(b). …… If,
in an appropriate case, the High Court decides to follow
the second course, it must hear the parties fully with
reference to the entire evidence on the records relevant
to the issue in question, and this is possible if only a
proper paper book is prepared for the hearing of facts
and notice is given to the parties. The grounds which
may be available in support of a plea that the finding of
fact by the court below is vitiated in law does not by
itself lead to the further conclusion that a contrary
finding has to be finally arrived at on the disputed issue.
On a reappraisal of the entire evidence, the ultimate
conclusion may go in favour of either party, and it
cannot be prejudged.”
31. In the case of Hero Vinoth v. Seshammal (2006) 5 SCC 545,
this Court explained the concept in the following words:
“It must be tested whether the question is of general
public importance or whether it directly and
substantially affects the rights of the parties.
Or whether it is not finally decided, or not free from
difficulty or calls for discussion of alternative views.
If the question is settled by the highest court or the
general principles to be applied in determining the
question are well settled, and there is a mere question of
applying those principles, or that the plea raised is
18
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palpably absurd, the question would not be a substantial
question of law.”
32. It is not that the High Courts are not well-versed with
the principles governing Section 100 of the CPC. It is only
the casual and callous approach on the part of the courts to
apply the correct principles of law to the facts of the case
that leads to the passing of vulnerable orders like the one
on hand.
12. None of the points raised in the review petition are
covered under the substantial questions of law, and they could not
be decided by the High Court while deciding the second appeal.
13. It was wrongly stated in the review petition that the
Court had not given any finding on the point that since Surju had
not raised any dispute regarding the status of Dhuri, therefore, his
legal representatives could not raise such a dispute. The Court had
given a finding in Para 38 that there was no evidence to show that
Surju was aware of the tenancy during his lifetime. Hence, a
positive finding was recorded, and if there is an error in the
finding, the remedy of the petitioner is to file an appeal before the
Hon’ble Supreme Court instead of filing a review. There is nothing
19
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on record to show that this finding is not supportable by the
evidence; therefore, this plea will not assist the petitioner.
14. The plea regarding the competence of the Civil Court
was not raised while admitting the appeal on the substantial
questions of law and could not have been adjudicated. The Court
had held that entries were changed unauthorizedly, and the
changed entries could not be considered. Hence, the grounds
raised in the petition for reviewing the judgment do not fall
within the scope of substantial questions of law and cannot be
adjudicated.
15. Consequently, the present petition fails, and the same
is dismissed.
(Rakesh Kainthla)
Judge
3rd January, 2025
(saurav pathania)