CHANDRA KISORE SUKLA Vs. RENUKA BALLAV

JUDGEMENT

(1.) SECOND Appeal No. 287 of 1977 was dismissed by this Court on 17-11-1978. Against that judgment, the tenant-petitioner filed a special leave petition according to the provision of Article 136 of the constitution of India before the supreme Court. That prayer was turned down. Thereafter the present application for review of the judgment of this Court was filed.

(2.) IT has been contended on behalf of the petitioner that the provisions of order 47 Rule 1 (1) (a) of the Civil procedure Code are no bar in preferring the present application for review because the Supreme Court did not entertain the special leave petition. The cases in A. I. R. 1955 S. C. 464 and a. I. R. 1964 S. C. 1372 (T. Industries v. Government of A. P.) have been referred to. Unless leave was granted by the Supreme Court, there was no appeal in the eye of law and so, that fact did not bar the jurisdiction of the high Court to hear the application for review on the merits. Nothing stands in between the judgment of the Supreme Court and of this Court and hence, this review petition is maintainable.

(3.) REGARDING the merits, it has been contended that mistake is apparent on the face of the record within the meaning of the provisions of Order 47 Rule 1 (1) (c) of the Code of Civil procedure. Here, the landlord-opposite party sent two notices. But she did not file the suit for ejectment on the footing of the first notice. But she instituted the present suit for eviction on the basis of the second notice. But when the previous Postal Acknowledgement , Receipt, Ext. 3 (a), came back from the Post Office, the present petitioner sent a reply, Ext. 2, because the landlord had sent the first notice of ejectment. That reply incorporated in Ext. 2 was not considered by this Court and hence, that Is an error apparent on the face of the record. The cases in A. I. R. 1961 S. C. 1067 Ganga Dutt v. Kartik and A. I. R. 1968 S. C. 471 (Calcutta Credit Corpn. v. Happy Homes) have been cited. Reference has been made to the provisions of section 28 of the General Clauses Act, to the cases of Harihar Banerjee v. Ramsashi in 23 C. W. N. 77 P. C. , 77 C. W. N. 515 (Dilip v. Abodh) A. I. R. 1972 S. C. 819 (Bhawanji v. Himatlal) and 1978 (2) C. L. J. 163. Since the first notice was sent by the landlord by registered post, it: can be presumed that it was duly served on the tenant-petitioner. Hence, the present suit on the basis of the alleged second notice of ejectment is not maintainable. This matter was lost sight of by this Court, when the second appeal was dismissed. It has thus, been submitted that the application for review must be allowed.