Paramjit Kaur & Ors. v. Teja Singh & Ors.

1. Exemption allowed subject to just exceptions. The application stands disposed of. Review Petition No. 552/2016 in RSA No. 144/2013 along with C.M. Appl. No. 46868/2016 (for stay) and C.M. Appl. No. 46869/2016 (for condonation of delay of 78 days in filing the review petition).

2. This review petition seeks review of the judgment delivered by this Court on 1.9.2016 allowing the second appeal.

3. Two aspects are urged on behalf of the review petitioners/respondents/defendants before this Court:- 2016:DHC:8171

(i) The suit filed by the appellants/plaintiffs to challenge the

Relinquishment Deed dated 29.6.1973 executed by the husband of appellant no. 1 (father of the other appellants) was barred by limitation, and though the trial court by its judgment dated 16.7.2003 had decided the issue of limitation in favour of the appellants/plaintiffs, however, the first appellate court by its judgment dated 26.2.2013 decided the issue of limitation in favour of the review petitioners/defendants and against the appellants/plaintiffs holding the suit to be time barred, and therefore this Regular Second Appeal was bound to be dismissed in view of Section 3 of the Limitation Act, 1963 even though the issue of limitation was not urged before this Court on behalf of the review petitioners/defendants.

(ii) When the second appeal was admitted on 2.12.2013 the substantial question of law which was framed, and which has been reproduced in paragraph 33 of the impugned judgment of this Court dated 1.9.2016, there is no issue of limitation included and thus the suit of appellants/plaintiffs had to be dismissed as time-barred.

4. A review petition is filed under Section 114 read with Order XLVII of the Code of Civil Procedure, 1908 (CPC). Review petition lies if there is an error apparent on the face of record or certain new documents have come to the notice of the parties or if in the interest of justice on a very fundamental issue for ensuring justice a review petition is filed. Once a Court decides a case by a detailed judgment referring to and deciding all the points urged, it is not permissible for one of the parties to file a review petition to say that although a particular point was not urged the same be now allowed to be urged by the review petitioner and the disposed of case be re-decided on merits. Effectively, what is argued is that there is a right to file a review petition for arguing a point, although the point in question was not argued, i.e. on such non argued point the judgment is sought to be reviewed for being set aside.

5. An error apparent on the face of record necessarily means that an issue which has been considered and decided and which is ex facie illegally decided. If a point is not urged there does not arise an issue of there arising an error apparent on the face of record.

6. So far as the interest of justice requiring review is concerned, I do not think that once a case is argued for several days and hours before the Court resulting in a detailed judgment passed in open Court for around one and a half hours dealing with all the aspects argued (as stated in paragraph 5 of the judgment dated 1.9.2016), then there at all can arise an issue of interest of justice because pleadings of parties always contain several points but it is the privilege of the parties whether or not to press a point found in the pleadings. The issue of limitation once is not pressed on behalf of the review petitioners/defendants in this Court, and the only points urged which are referred to in paragraph 5 of the judgment dated 1.9.2016 have been decided by the judgment, there cannot arise an issue of interest of justice because if this argument is accepted it would mean that counsels and parties will keep on filing review applications to urge that various points which have not been argued, and therefore actually given up. After the judgment is passed disposing of the case the Court becomes functus officio, and on the basis of new arguments a judgment cannot be set aside in review.

7. I also asked counsel for the review petitioners/defendants to show any judgment that even if a point is not argued, and the case is otherwise decided by a detailed judgment on various argued aspects, yet a non argued point can be pressed by filing of a review petition. No such judgment is pointed out to this Court.

8. Therefore, neither there is any error apparent on the face of record nor interest of justice requires setting aside of the impugned judgment dated 1.9.2016 by allowing of the review application on the ground of limitation.

9. So far as the argument urged on behalf of the review petitioners/defendants that when the substantial question of law was framed by this Court on 2.12.2013 when this Regular Second Appeal was admitted there is no specific issue included of limitation, and therefore, the issue of limitation has to be necessarily decided in favour of the review petitioners/defendants for dismissing of this Regular Second Appeal and the suit of the appellants/plaintiffs, but, in the opinion of this Court, this argument is without merit for various reasons. Firstly, it is seen that the substantial question of law which was framed, and which is reproduced in the impugned judgment dated 1.9.2016 in paragraph 33, shows that the question of law framed is a general question of law and which will thus necessarily include all issues which were to be urged by the parties including the issue of limitation. The general substantial question of law framed on 2.12.2013 cannot be said to have excluded the issue of limitation as is now sought to be argued on behalf of the review petitioners/defendants. Secondly, the argument urged on behalf of the review petitioners/defendants that the issue of limitation was not included in the substantial question of law framed on 2.12.2013 has a fundamental fallacy because the impugned judgment of the first appellate court which was challenged before this Court by the Regular Second Appeal had decided the issue of limitation in favour of the review petitioners/defendants, and if the issue of limitation was not included in the substantial question of law framed on 2.12.2013 then the second appeal itself would have been dismissed without being admitted, inasmuch as, if the finding of the first appellate court by the judgment with respect to limitation was upheld, the suit would have been barred by limitation and hence the second appeal of the appellants/plaintiffs would not have been dismissed and not admitted for hearing by framing a substantial question of law on 2.12.2013. Therefore, I cannot agree with the arguments urged on behalf of the review petitioners/defendants that the substantial questions of law framed on 2.12.2013 did not include and cover the issue of limitation, and that such issue of limitation could not have been argued by both the parties before this Court when the second appeal was actually heard and then decided on merits. Of course, enabling a person to argue a point and whether the person actually exercises the option to argue the point, viz. of limitation, are two separate aspects and once an issue is not urged and pressed, I fail to understand that how at all this Court would have while passing the detailed judgment on 1.9.2016 decided a point of limitation which was never urged.

10. On behalf of the review petitioners/defendants, in the review petition, reliance is placed upon the judgment of the Supreme Court in the case of Prem Singh and Others Vs. Birbal and Others, (2006) 5 SCC 353, but it is seen that this very judgment holds that issue of limitation qua challenge to a document falls under two categories, a voidable document and a void document. When a document is obtained by coercion, fraud or undue influence, then the document is voidable and will have to be challenged within a period of limitation as per Articles 57 to 59 of the Limitation Act, but if the document is void document then in fact there is no issue of limitation for filing of a suit to challenge a void document. In the present case, the document being the Relinquishment Deed dated 29.6.1973 has been held effectively to be void by the judgment of this Court dated 1.9.2016, as having been executed by the husband of the appellant no.1 (father of the other appellants), without having the power to do so because by virtue of the Will of the father-in-law of the appellant no.1 in favour of the husband of the appellant no.1 (and pursuant to which the Relinquishment Deed was executed) a specific bar was created against the husband of the appellant no.1 to transfer the suit property till a period of 10 years. This aspect has been dealt with in detail by this Court in paragraphs 19 to 31 of the judgment delivered by this Court on 1.9.2016. The issue of limitation, therefore, in any case will not in any manner help the review petitioners/respondents/defendants for setting aside of the impugned judgment allegedly on the ground that suit filed by the appellants/plaintiffs was barred by limitation.

11. The review petition is accordingly dismissed with the aforesaid observations.

DECEMBER 23, 2016 VALMIKI J. MEHTA, J AK/ib