Surya Prakash Kesarwani, J. - (1.) THESE review applications have been filed on behalf of Mrs. Joyce Cynthia Prabhakar and another and defendant -appellants for review of the common judgment dated 31.5.2013 passed in the above noted two special appeals. We have heard Sri Dhruva Narayana, learned Counsel for the applicants (defendant -appellants) and Sri Navin Sinha, learned Senior Counsel assisted by Sri P.K. Ganguly for the respondents.
(2.) SRI Dhruva Narayan submits that the judgment dated 31.5.2013 is liable to be reviewed under Order XLVII, Rule 1 of C.P.C. for the following reasons: (i) The special appeals were essentially in the nature of first appeal arising in the testamentary suits governed by the provisions of Civil Procedure Code and as such the principles underlying Order XLI, Rule 31, C.P.C. were applicable but the Court has failed to set out the points for determination independent of the issues framed by the learned Single Judge for decision in appeal. (ii) The entire evidences by either of the parties have not been considered or discussed in detail and inordinate and unwarranted reliance had been placed on assessment of evidences by learned Single Judge on issues framed by it, have been adopted, which is impermissible and renders the judgment to be reviewed. (iii) The Rulings cited on behalf of the appellants have not been adverted to except by referring to the citation. (iv) Entire evidence of D.W. 1 and D.W. 3 has not been subjected to any assessment independently which is against the principles laid down in the judgment in : (2011) 4 SCC 240. (v) The Division Bench has failed to adopt the approach directed by the Apex Court in the case, : AIR 1959 SC 443, inasmuch as in the impugned judgment, the Division Bench has failed to investigate whether the disputed Will was proved by the respondent. On the strength of the aforesaid arguments, Sri Dhruva Narayan submits that the judgment dated 31.5.2013 suffers from error apparent on the face of record and, therefore, the same is liable to be reviewed. Sri Navin Sinha submits that in paragraph 12 of the judgment dated 31.5.2013 the Court has formulated the points for determination as under: (i) Whether the Will dated 5.9.1994 is valid? (ii) Whether this Will is surrounded by suspicious circumstances which have not been removed? (iii) Whether the Will is an unnatural bequest? (iv) Whether the Will dated 5.9.1994 is forged document? Elaborating his submissions, Sri Navin Sinha submits that in view of the fact that points for determination were formulated in paragraph 12 of the judgment and as such the first ground for review argued by learned Counsel for the applicants is wholly misconceived. Sri Sinha drew the attention of the Court to various paragraphs of the judgment and particularly paragraphs 24 and 25 wherein the law settled by the Apex Court in various judgments have been summarized. He further submits that in the judgment dated 31.5.2013, the Court has applied the principles of law laid down in various judgments of the Apex Court on the facts of the present case and thus the judgment does not suffer from any error of apparent on record.
(3.) SRI Sinha further submits that the Court while rendering the judgment dated 31.5.2013 has considered elaborately each and every point for determination with reference to the facts and evidences available on record and thereafter, recorded the finding that the Will dated 5.9.1994 executed by Mrs. Edna Diamond Peters is wholly valid and the Will has been proved. He submits that the grounds of review advanced by the applicants are in the nature of grounds of appeal. The grounds of review so raised is wholly outside the scope of Order XLI, Rule 1, C.P.C. He relied upon the judgment of Hon'ble Supreme Court in the case of Smt. Meera Bhanja v. Smt. Nirmala Kumari Chandra : AIR 1995 SC. 455, paragraphs 8 and 12. He submits that all the points raised by the applicants are for re -appreciation of evidences and as an appeal which are outside the scope of review.;