- (1.) D. K. Seth, J. The disputed property was notified under Section 4 of the Indian Forest Act, as the land reserved for forest. The petitioner filed objection which was decided by the Forest a uthorities against the petitioner by an order dated 24-8-1990, An-nexure-1 to the petition. An appeal was preferred under Section 17 of the Forest Act being Civil Appeal No. 3806 of 1990 by the petitioner which was allowed by an order dated 6th March, 1991, filed as Annexure-2 to the petition. Against the said judgment an application for review was also filed, being Review Application No. 43 of 1993. By an order dated 26th November, 1993 the said Revision application was rejected, filed as Annexure-3 to the petition. The forest department had moved to the Apex Court, whereupon on 4th October, 1993 an order was passed. It is alleged that the order dated 26th November, 1993 was passed on the basis of order dated 4th October, 1993. Thereafter the Forest department filed another Review Application being Special Review Application No. 77 of 1994 which was decided by an order dated 23-4-1994, filed as Annexure-5 to the writ petition. It is this order which is under challenge.
(2.) LEARNED Counsel for the petitioner Sri C. D. Yadav has urged only one point namely that no second review application is amintainable, once the review application is dispose of earlier. According to him after the appellate order was passed, the respon dents had filed an application for review, and the same was dismissed and the matter stands concluded. There cannot be any question of filing second review application on the selfsame cause of action. I have heard Shri C. B. Yadav, learned Counsel for the petitioner and the learned Standing Counsel. The provisions for review as provided in Section 114 of the Code of Civil Procedure specifies on the conditions in Clauses (a), (b) and (c) of Section 114 of the Code of Civil Procedure, a person aggrieved may apply for 'a' review of judgment of the Court which passed the Decree or made an order and the court may pass such order as it may deem fit. Order 47, Rule 1 of the Code of Civil Procedure prescribes manner of making review application which also con tains some clauses as were incorporated in Section 114, shown as Clauses (a), (b) and (c), to sub-rule (1) of Rule-1, Order 47 of the Code of Civil Procedure. There it has been provided that aggrieved person may apply for 'a' review of the judgment of the court, who passed the decree or order on the grounds mentioned therein. The grounds as mentioned in Rule 1, Order 47 postulates : (1) discovery of new and important matter or evidence which after exercise of due diligence was not within the knowledge of the person aggrieved, (ii) that he could not produce such evidence when the decree was passed or orders were made, (iii) or there is some mistake or error apparent on the face of record, and (iv) or for any other sufficient reasons, desired to obtain 'a' review of the decree passed or order made against him. Sub-rule (2) of Order 47 provides that a person who did not prefer appeal may apply for 'a' review notwithstanding pendency of the appeal by some o ther party except where grounds of appeal is common. Therefore, it is clear that only 'a' review is permissible. There cannot be successive review one after the other. In the case of Lovabati Devi v. Hora Dewa 1971 (1) Cut WR 123, it was held that an application for review of an order passed on review is not maintainable. That apart the decision on the review is surely an issue decided. Therefore, principle of res-judicata would be equally applicable in such a case.
(3.) NOW in the facts and circumstances of the present case the question is to be looked into from different point of view. Inasmuch as it is alleged by the respondents that the review was preferred on the basis of leave granted by the Apex Court. Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all courts within the Territory' of India. Here in this case it is alleged that the leave was granted to move such review. The said leave, as is apparent from the copy of the order dated 4-10-1993 passed in writ petition No. 1061 of 1982 between Banwashi Sewa Ashram v. State of U. P. and others, by the Apex Court. In the said order it was recorded that the Forest Department may bring those cases as to where on physical verification it appears that wrong orders have been passed, the same may be brought to the notice of Addi tional District Judge, who shall consider those cases in accordance with law viz: "as suggested by the Record Officer, we direct the closure of the Kaimoor Survey Agency with effect from 15th October, 1993. Two survey units instead of 5 units may keep on functioning till further orders to complete the residual work. These 2 units shall, from 15th October, 1993 on wards, function under the control of Collector, Sonbhadra. We direct the Revenue Secretary, Government of U. P. and the Collector, Sonbhadra to create a separate branch under the administrative control of Collector, Sonbhadra to look after the records which shall be surrendered as a result of the closure of the Kaimoor Survey Agency. The Collector shall secure the records. The Collector, Sonbhadra and the Revenue Secretary shall send a compliance report to this court by 15th November, 1993. The Collector, Sonbhadra shall further send the progress report regarding the functioning of the 2 units by the first week of December 1993. The five Additional District Judges who are hearing the appeals shall continue to function till further orders. The Revenue Secretary shall send a report to this court before November 30, 1993 stating the number of appeals pending on that date to be disposed of by the Additional District Judges. Mr. Abhay Kumar Singh, the Divisional Forest Officer, District Sonbhadra, has filed an affidavit wherein it is stated that during the physi cal verification made by the Forest Department certain cases have come to light where wrong orders have been passed. He seeks directions from this court for the review of those cases. The Forest department may bring those cases to the notice of the Additional District Judges who shall consider those cases in accordance with law. " This is a special case in special situa tion as is apparent from the observations of the Apex Court that permission was granted having regard to the special situation, which does not come within ambit of ordinary pro cedure. Since leave was granted and on spot verification certain materials were found out, those are definitely materials which could not be produced by the respondents despite exercise of due diligence. Since such a situation was not within knowledge and that new and important, matter has come out on account of such spot inspection car ried out in view of directions of the Apex Court in connection with the said case bringing within ambit of Rule 1 of Order 47 of the Code of Civil Procedure. The order dated 26-11-1993 records that review was sought to be carried out on the basis of an order dated 4-10-1993, but it has not referred to the new material on the basis whereof this review was sought for pursuant to the leave granted by the Apex Court. On the other hand the order proceeds on the basis of material on record. The learned Judge did not find any reason to allow the review since there was no mistake in the decision sought to be reviewed. Therefore, it appears that the Additional District Judge who had decided the said review failed to do so according to the spirit of the order passed by the Apex Court. In asmuch as the Apex Court clearly indicated that in cases where new material has come on spot inspection, then such review is to be decided by the Additional District Judge, in accordance with law. The very order dated 26-11-1993 shows that the learned District Judge has not decided the same according to the spirit of the said order. On the other hand special review decided on 25-4-1994 shows that the same was decided in terms of the order dated 4th October, 1993 and is, in fact, according to the spirit of the said order, on the basis of new material that has been brought to its notice. The first review order was passed in oblivion of the spirit of the order dated 4-10-1993 passed by the Apex Court which was binding on it under Article 141 of the Constitution of India and as such void on account of its being contrary to the said order in spirit and substance.;