HATHIYA RAM MATH Vs. BHAWANI NANDAN YATI

JUDGEMENT

(1.) This application for review has been filed against an order dated December 17, 1999. passed in Civil Misc. Writ Petition No. 50699 of 1997. Original Suit No. 351 of 1977 was filed by the petitioners before the learned Civil Judge, Ghaztpur. In connection with the said Suit, an application for Injunction was moved which was allowed by the learned trial Judge by an order dated 29th September, 1997. Against which an appeal No. 22 of 1997 was filed. In appeal the order of the learned trial court was reversed by an order dated 26th November, 1999. Against this order, the Writ Petition No. 50699 of 1999 was moved. Now review is being sought against the said order dated December 17, 1999 dismissing the writ petition.

(2.) Mr. L. P. Nalthani, learned counsel for the petitioners in the writ petition as well as in the review application contends that there is an error apparent on the face of the record due to which this order should be reviewed to the extent that it Is a sound proposition of law with regard to which there cannot be any two opinions that the power to appoint Includes power to remove. Therefore, the finding to the contrary in the order dated 17th December, 1999 suffers from an error apparent on the face of the record while it observes that there being no custom or usage in respect of once appointed respondent could not have been removed. He secondly contends that the learned Judge had completely overlooked the condition contained in clause 4 of the said document by which the respondent was appointed reserves a right to remove the respondent on account of certain conditions. Respondent having accepted his appointment pursuant to the said document, he cannot get any right de hors the said document. This condition having been overlooked, the judgment suffers from an error apparent on the face of the record. In elaborating his submission, he had pointed out from Annexure-4 that the respondent himself had sought to rely on this very document to get his name mutated In the. records of the municipality and as such he could not have claimed any right contrary to the conditions contained in the said document. This fact was also not taken into consideration and was overlooked thoroughly in the order dated 17th December, 1999. In support of his contentions, that even a proposition of law can be a ground for review if such proposition is an absolute proposition about which there cannot be any two opinions, he had relied on a decision of which reference shall be made at a later point of time. He had also contended that the decision in the case of Sri Mahalinga Thambiran Swamigal v. His Holiness Sri La Sri Kasivasi Arulnand Thambiran Swamigal, AIR 1974 SC 199, has not been correctly appreciated and that the law laid down therein has been wrongly followed, which Is also an error of law apparent on the face of record. In the present case there was no question of custom or usage on account of the condition specified In the document by which the respondent was appointed and that he had derived his power which was acted upon by him. Therefore, the order should be reviewed.

(3.) Mr. R. N. Singh, learned counsel for the respondent on the other hand contends that all these facts which are now being agitated have been taken into consideration in the order itself, which is apparent in the order. He led the court through the order in between the lines. He had also contended that none of the grounds taken in the review application are grounds permissible under Order XLVII of the Code of Civil Procedure. According to him the ground that has been made out in course of argument by Mr. Naithani also cannot be sustained in the facts and circumstances on two-fold reasons, first that the legal proposition that has been sought to be urged by Mr. Naithani is not a sound proposition of law so absolute that it cannot harbour any two opinions. Therefore, the same cannot form a ground for review. He secondly contends that even then the facts alleged by Mr. Naithani have also been taken into consideration and have been dealt with in the order itself and, therefore, the same cannot form a ground for review. In elaborating his submissions, he contended that the document on which the petitioner had been banking upon, was a document created subsequent to the succession or installation of the respondent as Mahant, which is apparent from the averment made in paragraph 8 of the plaint where it has been admitted that the respondent was Installed as Mahant on 23rd February, 1996, whereas the document was created on 21st March, 1996. According to him, the said document cannot have any importance in the matter of Installation of the respondent as Mahant, which fact was duly noted in the order dated 17th December, 1999. According to him even if the decision is erroneous to that extent still then the same cannot be a ground for review. He also contends that even in the document contained in Annexure-2 itself, in paragraph 6, the installation of the respondent as Mahant on 23rd February, 1996 has also been admitted and incorporated and alleged to have been followed by due performance of the requisite ceremonies for "such installation or investiture. Therefore, a document created subsequent to the investiture cannot govern the installation and would not bound the respondent, which fact has duly been noted in the order itself. Whatever be the position, correct or erroneous, the same cannot be subject-matter of review since this Court while exercising jurisdiction under Section 114, read with Order XLVII of the Code of Civil Procedure does not exercise appellate jurisdiction. On these grounds, he claims that the review application should be dismissed.