MEHRUNNISA Vs. IMTIAZ KHAN

JUDGEMENT

(1.) This is an application for the review of the judgment of this Court dated January 18, 1979 rendered in proceedings under Section 115 Civil Procedure Code by which it set aside the order dated July 26, 1975 of the IInd Additional District and Sessions Judge, Kanpur passed under Section 115 Criminal Procedure Code. The learned Judge, by his order dated July 26, 1975 had set aside an order of eviction passed by Munsif City, Kanpur on March 16, 1974 in proceedings under Section 7-B of U. P. Act No. 3 of 1947. This Court set aside the order of the llnd Additional District and Sessions Judge and restored that of the Munsif. The present application for review is pressed by the learned counsel for the tenant-application, against whom the order of eviction was passed by the Munsif, mainly on two grounds. The first ground is that the learned Munsif was in error in parsing the order of ejectment under Section 7-B of U. P. Act No. 3. of 1947 inspite of the fact of the amount of rent for the premises, at the rate admitted to the tenant, being deposited under Section 7-C of the said Act having been brought to his notice. This Court, according to the submission committed an apparent error of law in overlooking the fact of the deposit of rent under Section 7-C of the Act. The submission so made is not open to the learned counsel in the present petition for review. The fact that it was the case of the tenant that he was depositing the amount of rent at the rate admitted to him under Section 7-C of U. P. Act No. 3 of 1947 found a mention in the order passed by the Munsif and was, consequently, before this Court. The decision of this Court proceeded upon the footing that the tenant- applicant had failed to bring this fact to the notice of the Munsif within the prescribed period of 15 days under Section 7-B of that Act. As such, he had rendered himself liable for ejectment. This Court, in essence, affirmed the view taken by the Munsif in this regard. In these circumstances, it cannot be a basis for the review of the judgment of this Court. The second ground urged by the learned counsel is that the application in revision in which this Court rendered its judgment on January 18, 1979 had been filed in September, 1975 and was, consequently, not maintainable being an application in revision against an order passed by the Court below under Section 115 Civil Procedure Code. The judgment of this Court was, as such, without jurisdiction and that was an apparent error which entitled him to claim a review thereof. An application in revision like the one decided by this Court on January 18, 1979 was held to be maintainable by a Full Bench of this Court in Phoolwati v. Gur Sahai (A. I. R. 1975 All. 262), which was holding field at the time when the judgment of this Court was rendered The view taken in that case wns subsequently over-ruled by a larger Bench in Jupiter Chit Fund (Pvt) Limited v. Dwarka Diesh Dayal (A. I R. 1979 All. 218), and the view taken by this Court in the case of Jupiter Chit Fund (Pvt) Ltd. was affirmed by the Supreme Court in the case of Vishesh Kumar v. Shantt Prasad, ( A. I R. 1980 S. C. 892 ). The Court, thus, decided the revision-application on January 18, 1979 on the basis that the legal position as laid down by this Court, was that the application in revision was maintainable. In the subsequent decisions it was laid down that an order of the nature passed by the Court below in the instant case was not revisable by this Court. On the principle enshrined in the Explanation added to Rule (2) of Order 47 Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1976 (Parliament Act No. 104 of 1976) the ground for attacking the jurisdiction of the Court, raised in the present case, cannot be held to be available for the review of the judgment rendered by the Court in this case. There is no force in this application which is dismissed. In the peculiar circumstances of the case, however, I direct the parties to bear their own costs. .