MAHENDRA BHUSHAN, J. - (1.) THIS is a defendant's application under Sec. 114 read with Order XLVII, rule 1, C P. C. for a review of the judgment passed by this Court on the eviction matter in S. B. Civil Second Appeal No. 586/of 74, Tilok Chand vs. Jeetmal and others, on July 30, 1975.
(2.) JEETMAL and Jaiwantmal, the two plaintiffs, purchased a shop in dispute situated in Dargah Bazar, Ajmer along with other property from the previous landlords Chhabaldas and Railumal under the sale deed (Ex. 1) dated 27-10-67. The defendant-applicant, Tilokchand, was a tenant in the shop in dispute at Rs. 20/- p. m. The previous landlords Chhabaldas and Railumal informed the applicant about the sale in favour of the plaintiffs, and thus the applicant became the tenant of the venders by operation of law. The venders, i. e. , the plaintiffs, determined the tenancy of the applicant by a notice dated 19-6-68, and called upon the applicant to surrender vacant possession of the suit shop. When the applicant failed to comply with the demand of surrendering possession of the shop, the plaintiffs filed a suit for eviction and for recovery of arrears of rent on three grounds, namely (1) that the defendant has not paid rent for more than six months; (2) that the defendant has sub-let the shop to one Shankerlal (defendant No. 2); and (3) that the plaintiffs require the suit shop reasonably and bona fide. The defendant-applicant resisted the suit, but no plea with regard to the defect of title of the plaintiffs in the suit shop was raised. A plea was also raised that he was the tenant of the Custodian Department The learned trial Court decreed the suit on all the three grounds. The applicant filed an appeal in the Court of Additional District Judge, Ajmer, who reversed the finding of the learned trial Court that there was sub-letting by the applicant (defendant) in favour of Shankerlal. but upheld the finding on other two grounds, and consequently decreed for eviction was also upheld. A second appeal was filed in this Court, which was dismissed on July 30, 1975 by the learned Single Judge, and the findings of the first appellate court as well as of the trial court on the two grounds, on which the suit was decreed for ejectment, were affirmed. The present review petition was filed in this court on 27. 8. 75. The main ground taken in review petition is that there is a mistake or error apparent on the face of the record, in as much as, in para 2 of the grounds of appeal before this Court, the point was specifically taken that the trial Court erred in not allowing the amendment sought by an application dated 10. 9. 71. The amendment should have been allowed, but this escaped the notice of this Court, and it goes to the very root of the matter and was sufficient to decide the appeal in favour of the applicant. A ground has also been taken that the finding of this Court is based upon inadmissible or no evidence at all, and this is also an error apparent on the face of the record, and at any rate comes within the meaning of "any other sufficient cause", and on the evidence no title vested in the plaintiffs to file the suit. Before a review can be allowed on account of "some mistake or error apparent on the face of the record", the case must be one apparent on the face of the record, and should not require any extraneous matter to show its correctness. A look at the judgment of this Court sought to be reviewed will show that there is no evident error in it. The submission of the learned Advocate is that though it was specifically prayed that the amendment was wrongly disallowed by the trial Court, and as such should be allowed, but the learned Court did not even deal with that ground of appeal. But, firstly, it does not appear from the judgment of this Court that this ground was pressed at the time of arguments, and the Court was called upon to decide this ground, and, secondly, I shall presently show that even if the ground would have been pressed, it would not have effected the ultimate decision of the appeal. While preferring an appeal, many grounds are taken, but it is not necessary that at the time of arguments all are pressed. The Court, therefore, is only required to decide such of the grounds, which are argued and pressed before it. Even the ground, that there was defect in title of the plaintiffs, the suit was not maintainable on their behalf, does not appear to have been argued before this Court. No doubt, it is mentioned in ground (1) (page 4 at the bottom) that this ground was also argued before this Court, but neither the affidavit of the applicant nor of his advocate has been submitted in support of the fact of having argued this point at the time of arguments. To my mind, if an application for review is submitted on the ground that a particular point was urged during the course of arguments and had not been decided in the judgment, or that the counsel for the applicant was not heard on a particular point, then such an application must be accompanied by an affidavit of the party or his counsel. The onus is always on the applicant to make out a case for review, and the case can only be said to have been made out when such allegations in the application are supported by an affidavit, as already observed above. Therefore, it can be said that by mere mention in the application for review that this ground was argued at the time of arguments, the applicant cannot be said to have made out a case for review of the judgment on this ground, Secondly, the two amendments sought in the written statement by the defendant by his application dated 10. 9. 71 were to the following effect: - "at the end of para 1 of the written statement, the following be added. (1) In the alternative, it is submitted that even if Sarva Shri Railumal & Chabaldas have executed a sale deed in favour of the plaintiffs, the plaintiffs have not become full owners of the suit property. At the end of para 7 of the written statement, the following be added - (2) The notice, if any, is illegal as it is not given by or on behalf of the joint owners of the property. " The trial court did not allow these amendments. The applicant did not file a revision petition against the order of the trial court. Not only this, as observed by the first appellate court, a ground was not even taken in the memo of appeal that the amendments were wrongly disallowed and it was not prayed that the amendment application should be allowed. It will be useful to extract the relevant portion of the judgment of the first appellate court: - "it appears that the defendant made an application for amendment of written statement seeking to allege these facts. This application was disallowed by the Court. No revision was filed and no complaint against that order has been made in the memo of appeal in this Court. Although the point that the property has not been validly passed as to the plaintiffs is challenged in the memo of appeal, but there has been no attack on the order of the trial court rejecting the application of the defendant for amendment. It seems that the appellant wants to just contended with the pleadings as they are and they do not want to press for the amendment of the written statement. " The applicant even admitted in the grounds of appeal in this Court (page 7 para 2 bottom) that in para 4 of the memo of appeal, he very specifically and in detail took the objection pointedly, but did not mention the words about the refusal of the amendment application before the trial court, and the appellate court, therefore, refused to consider the question of the defect of title in the property by the plaintiffs. It will, therefore, be clear that in the first appellate court neither any point was taken that the amendment application was wrongly disallowed, nor any prayer was made that the amendment application should now be allowed. Not only this, as will be clear from the perusal of the judgment of the first appellate court, where also an application for amendment of the written statement only regarding the validity of notice was submitted, but no prayer was made seeking the amendment of the written statement challenging the valid title of the plaintiffs to the property, or defect in the title. It will, therefore, be clear that the order of the trial court disallowing the amendment application had be come final. I have already stated above that though a ground was taken in this Court in the grounds of appeal, but the same was not pressed, and the applicant has failed to make out a case for review on the ground that the point was actually argued during the course of arguments, but has not been decided by this court. If the matter is viewed with another angle, I am of the opinion that in the facts and circumstances of this case, this Court while deciding the appeal perhaps could not have allowed the amendment, as was sought in the trial court. In this connection, a reference may be made to Reserve Bank of India Appellant vs. Ram Krishna Govind Morey, Respondent (1) wherein the facts were that the two successive applications for amendment of the plaint of the plaintiff respondent were rejected by the trial court on March, 18, 1958. The respondent moved the High Court at Bombay-Nagpur Bench in revision against the order rejecting his application for amendment. The learned single Judge of the High Court summarily rejected the revision petition, but in second appeal the High Court took the view that the application for amendment of the plaint of the plaintiff-respondent had been rejected without due consideration, and remanded the case to the trial court directing it to consider afresh the amendment application. Their Lordships of the Supreme Court observed as follows: - "whether the trial court should not have exercised its discretion differently is not a question of law justifying interference by the High Court in second appeal. The learned Judge of the High Court also failed to consider the fact that a revision application from the order refusing amendment had earlier been dismissed by the High Court. For these reasons, we hold that the High Court had no jurisdiction in second appeal to interfere with the order passed by the trial court in its discretion, which was affirmed by the lower appellate Court. " Therefore, I am of the opinion that the amendment perhaps could not have been allowed. Moreover, I am of the opinion that the amendment was not necessary to be allowed for the just decision of the case, in as much as, in section 3 (iii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act), "landlord" means any person, who, for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent, trustee, guardian or receiver or any other person, or who would so receive or be entitled to receive the rent if the premises were let to a tenant. Therefore, the ground whether the plaintiffs were the absolute owners of the property or not was not such which should have been allowed by way of amendment, because the plaintiffs were definitely purchasers from the previous "landlords" to whom alone the rent was paid by the applicant, as has been held proved by the courts, and as such the plaintiffs stopped in the wheel of previous "landlords" and become "landlords" of the defendant-applicant by operation of law, whom the previous "landlords" informed the applicant about the sale in favour of the plaintiffs and directed them to pay the rent to the plaintiffs. Apart from what has been stated above, even some of the co-owners can bring a suit for eviction and it is not necessary to implead the other co-owners as parties to the suit, more so, when the applicant (defendant) was only paying rent to Railumal-Chabal Das, who transferred the property to the plaintiffs. Even the notice for eviction can be given by few of the co-owners. In support of this, it will suffice to make a reference to the two authorities of their Lordships of the Supreme Court, Sri Ram Pasricha Appellant vs. Jagnnath respondents (1) and Subhendu Prosad Roy Choudhary Appellant vs. Kamla Bala Roy Choudhary, respondent (3 ). In Pasricha's case (Supra) two propositions of law have been laid down Firstly it has been held that a co-owner, who is admittedly a landlord of the premises alone has a right of filing a suit for eviction without impleading the other co-owners and it is not necessary that he must be the absolute and full owner of the premises, and, secondly, it has been held that the landlord can terminate the tenancy and institute the suit for eviction and the tenant in such a suit is estopped from questioning the title of the landlord under sec. 316 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the General Law, in a suit between the landlord and the tenant, the question of title of the lease property is irrelevant. In Subhendu Roy's case (Sup a) this authority was followed. Therefore, firstly, these points, which were sought to be incorporated in the written statement by amendment were not taken; secondly they were not such which should have been allowed for the just decision of the case, and thirdly, as already observed above, neither the defendant was serious about those amendments, nor argued the points during the course of arguments. Therefore, I am of the opinion that no ground for review is made out. It is further contended by the learned Advocate that when this review petition was pending in this Court, the Act was amended and Sec. 14 in the present form was incorporated, and therefore, unless the plaintiffs can prove that the balance of convenience in passing the decree for eviction on the ground of Sec. 13 (i) (h) is in their favour, the decree cannot be executed. An application was submitted by the applicant in this Court on 5-12-75 mentioning there in that a Judge of this Court has held the amending Ordinance of 1975 as retrospective, but this argument has also no substance, and the reasons for this conclusion are two fold. Firstly, this Court in Prabhashanker vs. Smt. Rukmani (4) has only held that sec. 14 (2) as amended by Ordinance No. 26 of 1975, which was replaced by an Act later on, has retrospective effect and applies to pending suits and appeals, and it has not been held that it will also apply to review petitions. A review does not reopen questions already decided between the parties and the matters in issue are only redeemed when the application for review is accepted, Therefore, to my mind, a very reading of Sec. 14 (2) of the Act, as it stands after the amendment will show that it is retrospective to the affect that a decree will not be passed, and no question of passing a decree in a review petition arisen, which, even if accepted, will only reopen the issues, which will then be decided only in the appeal itself. Secondly, the law is settled that in review petitions the position law as it stood at the time of Judgment sought to be reviewed is to be looked into. In Motaghiri Venkati vs. Vallanki Venkata Ram Rao (5) their Lordships of the Privy Council have held in most unequivocal terms that section of the old Code corresponding to this rule did not authorise the review of a decree which was right when it was made on the ground of passing on some subsequent event. Motaghiri's case (supra) was followed in Gyanaji Pomaji Marwari, Applicant vs. Ningappa Marbaspapa (6 ). A reference may also be made to In Re K. Vasudevan Petitioner (7), and Sarforaj Khan, Appellant vs. Ram Chanda, Non-applicant (8) and lastly to M/s A. C. Estate, applicant vs. M/s Serajuddin & Co. Respondents (9) wherein Motaghiri's case was followed, and it was observed as follows : - "our attention in this connection is drawn to S. 29 (5) of the Act which gives power to the Controller to review his orders on the conditions laid down under O. XLVII of the Code of Civil Procedure, but this cannot be a case of review on the ground of discovery of new and important matter, for such matter has to be something which existed at the date of the order, and there can be no review of an order which was right, when made, on the ground of the happening of some subsequent event. (See Rajah Kotghiri Venkati Subbamma Rao v. Raja Vellank Venkata Ram Rao (1900) ILR 24 Mad. 1 (P. C.)" (Italic is mine.) It will, therefore, be clear that the grounds for a review must be something, which existed at the time of the decree and the same cannot be granted because of happening of subsequent event such as amendment in law or the like. Therefore, even otherwise, the applicant cannot take the advantage of the amendment in S. 14 (2) of the Act by Ordinance No. 26 of 1975, which was later on replaced by an Act.
(3.) IN the result, I do not find any force in the review petition, and the same is dismissed with costs. Before parting, I will like to observe that the eviction cases need expeditious disposal. Though the S. B. Appeal was decided within a year of its presentation, but this review petition has taken more than 4 years in disposal in this Court. .;