SHRI. BAJRANG SALES Vs. NAGPUR IMPROVEMENT TRUST

JUDGEMENT

(1.) The applicants who were the original appellants in Second Appeal No.22/2018 seek review of the order dtd. 06/02/2018 by which Second Appeal No.22/2018 was dismissed as it did not raise any substantial question of law.

(2.) Shri Rohit Joshi, learned counsel for the applicants submitted that the first appellate Court having failed to decide the application below Exhibit-22 it was clear that the directions issued in Writ Petition No.6891/2016 were not complied with. This Court while deciding the second appeal ought to have considered that aspect. Though the ground raised in the memorandum of appeal was based on rejection of the said application, it was subsequently revealed on inspection of the record that the application under Order XLI Rule 27 of the Code was not decided by the first appellate Court at all. The ground as raised in the memorandum of appeal was based on the instructions received by the learned counsel and thus there was misconception of fact. It was contended that by seeking to lead additional evidence the applicants intended to substantiate their challenge based on alleged fraud by the non-applicant No.4 while mutating his name in the revenue records. Reliance was placed on the decisions in State of Orissa and ors. vs. Harapriya Bisoi (2009) 12 SCC 378 and State of Orissa and anr. vs. Fakir Charan Sethi (Dead Thr. LRs) and ors. (2015) 1 SCC 466. It was thus submitted that the review application be allowed and the second appeal be re-heard on merits.

(3.) Shri P. P. Kothari, learned counsel for the non-applicant No.4 opposed the aforesaid submissions. At the outset he submitted that since the ground for review as raised was not based on the substantial question of law on which the second appeal was heard, it was not permissible in review jurisdiction to consider a ground not based on such substantial question of law. In that regard the learned counsel referred to the decision in Kamala Raphael vs. Earnest and ors. AIR 2001 Gauhati 1992. Since the aspect now urged by the applicants was never raised by them in second appeal when it was argued, it would not be permissible for the applicants to urge that ground now. In any event it was submitted that the application filed under Order XLI Rule 27 of the Code was not liable to be allowed. There was no error apparent on the fact of record and in that regard the learned counsel placed reliance on the decisions in Hari Ganu Bhadirge vs. Hari Ganu Shinde and anr. AIR 1929 Bom 225, Md. Ashraf Ali vs. Debraj Wadhera 1995 Supp (2) SCC 654 and Ramdulari w/o Matabadalsingh (D) through LRs 2014 2 ALL MR 497. It was thus submitted that the review application was liable to the rejected.