GHULAM HUSSAIN Versus KANWAR ASHIQ ALI KHAN

ORDER

KARAM ELAHEE CHAUHAN, J.--MSt. Sharafunnisa (now represented by respondents) sold an area .of 123 kanals and 5 marlas of land to plaintiffs/ appellants vide Mutation. No. 1998 dated 8-6-1967. However, as this was allegedly not a sale of her entire holding . but even after it she wits left with some area which fell short 0. "substance holding" therefore the aforesaid mutation was cancelled and `land was re-entered in her name vide Mutations Nos. `2315 and 2316 dated 8-5-1974 by the Revenue Authorities.

2. The plaintiffs/appellants filed a suit challenging the later action/and mutations which was decreed by the learned Civil Judge on 19-1,2-1975.

3. The defendants (successors-in-interest of the vendor.) who had con tested the suit filed an appeal which was accepted by the learned District Judge on 23-4-1976, who held the aforesaid sale as void being hit by Martial Law Regulation 64 of 1959/Martial Law Regulation 115 of 1972. However, he further held that the plaintiffs would have the right to retain possession of land purchased by them till they were reimbursed and returned the compensation price of Rs. 14,700 paid by then ,to the vendor.

4. Both parties filed Second Appeals. R. S. A. No. 502/76 was filed by the plaintiffs whereas R. S. A. 1015/76 was filed by the defendants (who disputed or claimed reduction in the price awarded to the plaintiffs). The former appeal was dismissed, whereas the latter was accepted by the High Court by a common judgment dated 14-12-1977, whereby the matter of determination of the quantum of sale price compensation was remanded to the learned trial Court for fresh decision in accordance with law.

5. . The plaintiffs/petitioners filed a review, being R. A. No. 3/C-78 in R. S. A. No. 502/76 but without any success as it was dismissed in limine on 12-2-1978 on the ground that the plaintiffs could not point out any error apparent on the face of the record and the only point raised was as to what was the extent of the total holding of Mst. Sharafunnisa (.vendor) on the date of sale, which was a question of fact depending, on appreciation of evidence not warranting any review.

6. The plaintiffs have now filed Civil Petition for Special Leave to Appeal No; 139:of 1978. The present order well dispose of this petition.

7. The present petition, against the basic order of the high Court dated 14-12-1977 is barted by 395 days and there is no application or prayer either for condonation of delay or to set aside that order as such. When confronted with this situation the learned counsel argued that the present is a petition against the' order dated 12-2-1978 refusing to review the previous order dated 14-12-1977 and in, its own turn is within limitation qua that order. This may be so but while seeking leave to, appeal against order refusing to review the main previous . order, in. fact the object of the petitioner is to seek vacation of the said previous order which by efflux of time ha become final. The fact that in review the Court further affirmed the aforesaid order is immaterial inasmuch as a refusal to review the same will no give a fresh period of limitation to challenge it. In this peculiar situation therefore when the previous order has become binding on the petitioners, they cannot be allowed to bypass it by simply pleading that the present petition is against order refusing to review the same because while stating so their intention is to point out errors and mistakes in the basic order which were sought to be removed through a review application but which failed. There may be cases where for instance petition of review may be refused merely for want of jurisdiction in which of course a petition may lie but will .b on ground of refusing to exercise jurisdiction vested in a Court by law o the ground that it has no jurisdiction whereas in -fact and in, law i ha4 such jurisdiction. In those cases a petition against refusal to review will 6 not be a petition directly or indirectly against the main previous order on merits but only against the order in review itself. The position in the instant case is however different. Here the question is not of lack of jurisdiction of the High Court to entertain review, but after entertaining it refusing the same on the ground that no case for review on merits exists. Such a decision will essentially compel a suitor to challenge the previous order itself to point out the mistakes allegedly existing therein, which exercise obviously cannot be resorted to if the period of limitation for challenging the main previous order has run out and because you cannot do that indirectly which you cannot do directly. A more proper course in such situation will be to file a petition for leave to appeal against the basic previous order and apply for extension of time under section 5 of the Limitation Act IX of 1908 on the ground that the petitioner had in good faith and with due deligence been pursuing a remedy:- of review therefore the time spent therein may be allowed to him on the principle of section 14 of the aforesaid Act etc. See Dwarka Das-Kedar Bux v. Gajanan Jagannath and others (1), which was a case of a petition for leave to appeal to the Privy Council where time taken in review of judgment sought to be appealed against was allowing Brij Indra Singh v. Lala Kanshi Ram and others (2) which in its own turn approved Balwant Singh and another Gumani Ram (3), Karam Bakhsh v. Daulat Ram (4) and In re: Brojandar v. Coomar Ray (5). this course has not been adopted in this case, it is obvious, that such a belated and deficient petition must fail.

8. The result is that this petition is dismissed for the reasons above stated without expressing any view on the merits of the case in any manner, on factual or legal plane and reserving our opinion on the points arising therein for some befitting occassion in a proper case.

S. A. H. Petition dismissed.

(1)AIR1946Ca1.10 (2) AIR 1917PC156

(3) 1 L R 5 All. 591 (4) 183 P R 1888

(5) (1867) 7 W R 529