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Ramvati Vs. Sukhbir Singh Chauhan and Ors. - (High Court of Delhi) (04 Jul 2018)

Once Court has refused to entertain review petition and same is dismissed, there is no question of any merger and aggrieved person has to challenge main order and not order dismissing review petition

MANU/DE/2317/2018

Civil

Present petition under Article 227 of the Constitution of India impugns the order of the Court of the Civil Judge dismissing application filed by the Petitioner/Plaintiff under Order XL VII Rule 1 of the Code of Civil Procedure, 1908 (CPC) for review of the order dated 23rd January, 2016 in the suit.

The Petitioner/Plaintiff, acting through her Special Power of Attorney Holder instituted the suit from which present petition arises (i) for declaration that, the Will dated 6th May, 1986 and other documents (if any) executed by the Respondents/Defendants no. 1 and 2 viz. Sukhbir Singh Chauhan and Balkishan in favour of Respondents/Defendants no. 3 and 4 viz. Naresh Kumar and L.G. Real Estate L.L.P. on the basis of the said Will qua agricultural land in Revenue Estate of village Bakoli, Delhi are null and void as the same are forged and fabricated, obtained by playing a fraud upon the petitioner/plaintiff, and, (ii) for permanent injunction restraining the Respondents/Defendants from disturbing the possession of the Petitioner/Plaintiff of the said agricultural land.

In view of the philosophy behind Order XLVII Rule 7 of the CPC prohibiting an appeal against an order rejecting an application for review, High Court is of the view that, no petition under Article 227 of the Constitution of India also should lie against such an order. After all, a remedy is always available to a party against the order of which review is sought and the error, even if any in the order of which review is sought, can always be corrected in such appeal.

The Supreme Court in Municipal Corporation of Delhi Vs. Yashwant Singh Negi held that, once the Court has refused to entertain the review petition and the same is dismissed, there is no question of any merger and the aggrieved person has to challenge the main order and not the order dismissing the review petition because to the dismissal of the review petition the principle of merger does not apply. Reference was made to DSR Steel (Private) Limited Vs. State of Rajasthan laying down that, when the review petition is dismissed, the order of which review was sought, suffers neither any reversal nor an alteration or modification and anyone aggrieved by the order of which review was sought shall have to challenge the same and not the order dismissing the review petition. Applying the said principles, the SLP preferred against the order of dismissal of review petition, without challenging the order of which review was sought, was held to be not maintainable and was dismissed.

Even if a petition under Article 227 of the Constitution of India was held to be maintainable, it would be maintainable on the well recognized grounds, of the Court having exercised jurisdiction which did not vest in it or having exercised jurisdiction with material irregularity and which is not found to be the case. It is not as if the learned Civil Judge has refused to exercise the jurisdiction vested in her of review or has exercised the same with material irregularity. The view taken by the learned ADJ, of there being no error within the meaning of Order XL VII Rule 1 of the CPC in the order of which review was sought, is a well reasoned view in accordance with law. There is thus no merit in the petition which is dismissed.

Relevant : Municipal Corporation of Delhi Vs. Yashwant Singh Negi MANU/SC/0338/2014, DSR Steel (Private) Limited Vs. State of Rajasthan MANU/SC/0350/2012

Tags : REVIEW   MAINTAINABILITY   MATERIAL IRREGULARITY  

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