Delhi High Court
Nisar Ahmed vs Agya Pal Singh on 3 August, 2026
Author: Amit Sharma
Bench: Amit Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28th April, 2026
Pronounced on: 3rd August, 2026
# CNR No. DLHC010032952018
+ RC.REV. 367/2018
NISAR AHMED .....Petitioner
Through: Mr. Rajat Aneja, Mr. Abhinav
Chauhan, Mr. Karan Deep Singh, Mr.
Aditya Sharma and Mr. Saubhagya
Chauriha, Advocates with petitioner in
person.
versus
AGYA PAL SINGH .....Respondent
Through: Mr. Raman Kapur, Senior Advocate
with Mr. Siddharth Aggarwal, Ms.
Arohi Pal and Mr. Divyansh Singh,
Advocates.
CORAM:
HON'BLE MR. JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
CM APPL. 42293/2023, CM APPL. 35407/2025 & REVIEW PET.
221/2023
1. The present review petition under Order XLVII Rule 1 and Section 151
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of the Civil Procedure Code, 19081, filed on behalf of the respondent/tenant
seeks the following prayers: –
“1. Allow the present Review and set-aside the judgment dated
7.7.2023 and pursuant thereto dismiss the revision petition of the
petitioner.
2. Pass any such or further order that this Hon’ble Court may be
deemed fit and proper in the facts and circumstances of this present
case.”
2. The present review petition has been filed seeking review of the
judgment dated 07.07.2023, whereby revision petition of the
petitioner/landlord was allowed and an eviction order was passed against the
respondent.
3. Learned Senior counsel for the respondent has contended that in view
of the amendment to Section 83 of the Waqf Act, 19952, learned ARC would
not have jurisdiction to entertain a petition for eviction of the tenant with
regard to Waqf property and it would be Waqf Tribunal which would have
jurisdiction to adjudicate upon a petition for eviction of a tenant from Waqf
property. It is submitted that issue of impact on change of forum is a
procedural aspect, and therefore, the said Amendment is retrospective in
nature, and reliance has been placed in support of this contention on a
judgment of Hon’ble Supreme Court in Neena Aneja and Ors. v. Jai
Prakash Associates Ltd.3, and in particular, on the following paragraph: –
1
For short, ‘CPC‘
2
Vide ‘The Waqf (Amendment) Act, 2013 (Act No.27 of 2013)’, hereinafter referred to as “Waqf
Amendment Act, 2013”
3
(2022) 2 SCC 161
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“72. In considering the myriad precedents that have interpreted the
impact of a change in forum on pending proceedings and
retrospectivity–a clear position of law has emerged : a change in
forum lies in the realm of procedure. Accordingly, in compliance
with the tenets of statutory interpretation applicable to procedural
law, amendments on matters of procedure are retrospective, unless
a contrary intention emerges from the statute. This position emerges
from the decisions in New India Assurance [New India Assurance Co.
Ltd. v. Shanti Misra, (1975) 2 SCC 840] , Maria Cristina [Maria
Cristina De Souza Sodder v. Amria Zurana Pereira Pinto, (1979) 1
SCC 92] , Hitendra Vishnu Thakur [Hitendra Vishnu Thakur v. State of
Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087] , Ramesh
Kumar Soni [Ramesh Kumar Soni v. State of M.P., (2013) 14 SCC 696 :
(2014) 4 SCC (Cri) 340] and Sudhir G. Angur [Sudhir G. Angur v. M.
Sanjeev, (2006) 1 SCC 141] . More recently, this position has been
noted in a three-Judge Bench decision of this Court in Manish
Kumar v. Union of India [Manish Kumar v. Union of India, (2021) 5
SCC 1 : (2021) 3 SCC (Civ) 50] . However, there was a deviation by a
two-Judge Bench decision of this Court in Dhadi Sahu [CIT v. Dhadi
Sahu, 1994 Supp (1) SCC 257] , which overlooked the decision of a
larger three-Judge Bench in New India Assurance [New India Assurance
Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840] and of a coordinate two-
Judge Bench in Maria Cristina [Maria Cristina De Souza
Sodder v. Amria Zurana Pereira Pinto, (1979) 1 SCC 92] . The decision
in Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257]
propounded a position that : (Dhadi Sahu case [CIT v. Dhadi Sahu,
1994 Supp (1) SCC 257] , SCC p. 262, para 21)
“21. … no litigant has any vested right in the matter of
procedural law but where the question is of change of forum it
ceases to be a question of procedure only. The forum of appeal
or proceedings is a vested right as opposed to pure procedure to
be followed before a particular forum. The right becomes vested
when the proceedings are initiated in the tribunal.”
(emphasis supplied)
In taking this view, the two-Judge Bench did not consider binding
decisions. Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257]
failed to consider that the saving of pending proceedings in Mohd.
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Idris [Mohd. Idris v. Sat Narain, (1966) 3 SCR 15 : AIR 1966 SC 1499]
and Manujendra Dutt [Manujendra Dutt v. Purnedu Prosad Roy
Chowdhury, (1967) 1 SCR 475 : AIR 1967 SC 1419] was a saving of
vested rights of the litigants that were being impacted by the repealing
Acts therein, and not because a right to forum is accrued once
proceedings have been initiated. Thereafter, a line of decisions
followed Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257] ,
to hold that a litigant has a crystallised right to a forum once
proceedings have been initiated. A litigant’s vested rights (including
the right to an appeal) prior to the amendment or repeal are
undoubtedly saved, in addition to substantive rights envisaged
under Section 6 of the General Clauses Act. This protection does
not extend to pure matters of procedure. Repeals or amendments
that effect changes in forum would ordinarily affect pending
proceedings, unless a contrary intention appears from the repealing
or amending statute.”
(emphasis supplied)
4. Learned Senior Counsel for the respondent has also placed reliance on
the judgment of Hon’ble Supreme Court in Shiv Shakti Coop. Housing
Society v. Swaraj Developers4, and in particular, on the following paragraph:
–
“32. A plain reading of Section 115 as it stands makes it clear that the
stress is on the question whether the order in favour of the party
applying for revision would have given finality to suit or other
proceeding. If the answer is “yes” then the revision is maintainable.
But on the contrary, if the answer is “no” then the revision is not
maintainable. Therefore, if the impugned order is interim in nature or
does not finally decide the lis, the revision will not be maintainable.
The legislative intent is crystal clear. Those orders, which are interim
in nature, cannot be the subject-matter of revision under Section 115.
There is marked distinction in the language of Section 97(3) of the Old
Amendment Act and Section 32(2)(i) of the Amendment Act. While in
the former, there was a clear legislative intent to save applications
admitted or pending before the amendment came into force. Such an4
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intent is significantly absent in Section 32(2)(i). The amendment relates
to procedures. No person has a vested right in a course of procedure.
He has only the right of proceeding in the manner prescribed. If by a
statutory change the mode of procedure is altered, the parties are to
proceed according to the altered mode, without exception, unless there
is a different stipulation.”
5. Learned Senior Counsel for the respondent further submitted that the
subject eviction petition was not maintainable in law before learned Rent
Controller as he lacked inherent jurisdiction to entertain the same in view of
the expressed bar as provided under Sections 83 and 85 of the Waqf Act.
Consequently, this Court also does not have jurisdiction to entertain the
present revision petition. It is pointed out that the present eviction petition
was originally filed by the petitioner/landlord on 24.07.2009, claiming
himself to be the Muttawali of a Waqf, and the same was rejected under Order
VII Rule 11 of the CPC on 26.05.2011. That order was challenged in the
revision proceedings, which were allowed on 11.02.2015 and SLP against the
same was dismissed. Thereafter completion of full trial, the eviction petition
was dismissed vide order dated 07.06.2018, so the petitioner/landlord
preferred the revision petition which was allowed by way of judgment dated
07.07.2023 passed by the learned Single Judge of this Court. It is contended
by learned Senior Counsel for the respondent that the Waqf Amendment Act,
2013 is procedural in nature, and have to be given retrospective application in
the context of change of forum and jurisdictional provisions. It is the case of
the respondent that the retrospective effect of the said amendment can be seen
from the bare perusal of the language of Section 85 of the Waqf Act, and in
view of the same, the proceedings before Rent Controller could not be stated
to have been continued after Amendment Act, 2013 came into being.
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6. Learned Senior Counsel for the respondent has further placed reliance
on following observations in Mumtaz Yarud Dowla Waqf v. Badam
Balakrishna Hotel5: –
“CHANGE OF FORUM
18. We shall now come to the issue of retrospective application and
change of forum. As discussed, when a statute is amended on an issue
pertaining to a forum for adjudication, it being procedural takes effect
retrospectively. A party to a lis does not have any vested right of forum as
against action. In the absence of any substantive right being subsumed by
a particular forum, one has to give retrospective application. New India
Insurance Co. Ltd. v. Smt. Shanti Misra, Adult, (1975) 2 SCC 840,“5. On the plain language of Sections 110A and 110F there
should be no difficulty in taking the view that the change in law
was merely a change of forum i.e. a change of adjectival or
procedural law and not of substantive law. It is a well-
established proposition that such a change of law operates
retrospectively and the person has to go to the new forum
even if his cause of action or right of action accrued prior to
the change of forum. He will have a vested right of action but
not a vested right of forum. If by express words the new
forum is made available only to causes of action arising after
the creation of the forum, then the retrospective operation of
the law is taken away. Otherwise the general rule is to make
it retrospective. The expressions “arising out of an accident”
occurring in sub-section (1) and “over the area in which the
accident occurred”, mentioned in sub-section (2) clearly show
that the change of forum was meant to be operative
retrospectively irrespective of the fact as to when the accident
occurred. To that extent there was no difficulty in giving the
answer in a simple way. But the provision of limitation of 60
days contained in subsection (3) created an obstacle in the
straight application of the well-established principle of law. If
the accident had occurred within 60 days prior to the constitution
5
2023 SCC OnLine SC 1378
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of the tribunal then the bar of limitation provided in sub-section
(3) was not an impediment. An application to the tribunal could
be said to be the only remedy. If such an application, due to one
reason or the other, could not be made within 60 days then the
tribunal had the power to condone the delay under the proviso.
But if the accident occurred more than 60 days before the
constitution of the tribunal then the bar of limitation provided in
sub-section (3) of Section 110A on its face was attracted. This
difficulty of limitation led most of the High Courts to fall back
upon the proviso and say that such a case will be a fit one where
the tribunal would be able to condone the delay under the
proviso to sub-section (3), and led others to say that the tribunal
will have no jurisdiction to entertain such an application and the
remedy of going to the civil court in such a situation was not
barred under Section 110F of the Act. While taking the latter
view the High Court failed to notice that primarily the law
engrafted in Sections 110A and 110F was a law relating to the
change of forum.”
(emphasis supplied)
19. Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC
602,
“26. The Designated Court has held that the amendment
would operate retrospectively and would apply to the pending
cases in which investigation was not complete on the date on
which the Amendment Act came into force and the challan had
not till then been filed in the court. From the law settled by this
Court in various cases the illustrative though not exhaustive
principles which emerge with regard to the ambit and scope of
an Amending Act and its retrospective operation may be culled
out as follows:
(i) A statute which affects substantive rights is presumed to be
prospective in operation unless made retrospective, either
expressly or by necessary intendment, whereas a statute
which merely affects procedure, unless such a construction is
textually impossible, is presumed to be retrospective in its
application, should not be given an extended meaning and
should be strictly confined to its clearly defined limits.
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(ii) Law relating to forum and limitation is procedural in nature,
whereas law relating to right of action and right of appeal
even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no
such right exists in procedural law.
(iv) A procedural statute should not generally speaking be
applied retrospectively where the result would be to create
new disabilities or obligations or to impose new duties in
respect of transactions already accomplished.
(v.) A statute which not only changes the procedure but also
creates new rights and liabilities shall be construed to be
prospective in operation, unless otherwise provided, either
expressly or by necessary implication.”
(emphasis supplied)
20. Neena Aneja v. Jai Prakash Associates Ltd., (2022) 2 SCC 161,
“58. SEBI argued before this Court that a change of the
forum for trial was a matter of mere procedure and would,
therefore, be retrospective, there being no express or implied
intent either in the 2002 and 2014 Amendments that the
amendments were intended to be of prospective effect. J.S.
Khehar, J. speaking for the two-Judge Bench of this Court
adverted to the decisions inter alia in New India Assurance [New
India Assurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC
840], Ramesh Kumar Soni [Ramesh Kumar Soni v. State of
M.P., (2013) 14 SCC 696 : (2014) 4 SCC (Cri) 340]
and Hitendra Vishnu Thakur [Hitendra Vishnu Thakur v. State of
Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087], and
observed in that context : (Classic Credit case [SEBI v. Classic
Credit Ltd., (2018) 13 SCC 1 : (2019) 1 SCC (Cri) 431], SCC
pp. 67-68, para 49)
“49. … In our considered view, the legal position
expounded by this Court in a large number of judgments
including New India Assurance Co. Ltd. v. Shanti
Misra [(1975) 2 SCC 840] ; SEBI v. Ajay Agarwal [(2010)
3 SCC 765 : (2010) 2 SCC (Cri) 491] and Ramesh Kumar
Soni v. State of M.P. [(2013) 14 SCC 696 : (2014) 4 SCC
(Cri) 340], is clear and unambiguous, namely, that
procedural amendments are presumed to be retrospective in
nature, unless the amending statute expressly or impliedly
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provides otherwise. And also, that generally change of
“forum” of trial is procedural, and normally following the
above proposition, it is presumed to be retrospective in
nature unless the amending statute provides otherwise. This
determination emerges from the decision of this Court
in Hitendra Vishnu Thakur v. State of Maharashtra [(1994)
4 SCC 602 : 1994 SCC (Cri) 1087] ; Ranbir Yadav v. State
of Bihar [(1995) 4 SCC 392 : 1995 SCC (Cri) 728]
and Kamlesh Kumar v. State of Jharkhand [(2013) 15 SCC
460 : (2014) 6 SCC (Cri) 489], as well as, a number of
further judgments noted above.”
59. The above observations indicate the clear view of this Court
that:
59.1. In the absence of a contrary intent express or implied,
procedural amendments are presumed to be retrospective.
59.2. A change in the forum of a trial is a procedural matter.
59.3. Since a change of forum is procedural, a statute which brings
about the change is presumed to be retrospective in the absence of a
contrary intent.
xxxxx
C.23. Conclusion on the position of law
72. In considering the myriad precedents that have interpreted the
impact of a change in forum on pending proceedings and retrospectivity–
a clear position of law has emerged : a change in forum lies in the realm of
procedure. Accordingly, in compliance with the tenets of statutory
interpretation applicable to procedural law, amendments on matters of
procedure are retrospective, unless a contrary intention emerges from the
statute. This position emerges from the decisions in New India
Assurance [New India Assurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC
840], Maria Cristina [Maria Cristina De Souza Sodder v. Amria Zurana
Pereira Pinto, (1979) 1 SCC 92], Hitendra Vishnu Thakur [Hitendra
Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC
(Cri) 1087], Ramesh Kumar Soni [Ramesh Kumar Soni v. State of
M.P., (2013) 14 SCC 696 : (2014) 4 SCC (Cri) 340] and Sudhir G.
Angur [Sudhir G. Angur v. M. Sanjeev, (2006) 1 SCC 141]. More recently,
this position has been noted in a three-Judge Bench decision of this Court
in Manish Kumar v. Union of India [(2021) 5 SCC 1 : (2021) 3 SCC (Civ)
50]. However, there was a deviation by a two-Judge Bench decision of
this Court in Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257],
which overlooked the decision of a larger three-Judge Bench in New India
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Assurance [New India Assurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC
840] and of a coordinate two-Judge Bench in Maria Cristina [Maria
Cristina De Souza Sodder v. Amria Zurana Pereira Pinto, (1979) 1 SCC
92. The decision in Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1) SCC
257] propounded a position that : (Dhadi Sahu case [CIT v. Dhadi
Sahu, 1994 Supp (1) SCC 257], SCC p. 262, para 21)
“21. … no litigant has any vested right in the matter of
procedural law but where the question is of change of forum it
ceases to be a question of procedure only. The forum of appeal or
proceedings is a vested right as opposed to pure procedure to be
followed before a particular forum. The right becomes vested
when the proceedings are initiated in the tribunal.”
(emphasis supplied)
In taking this view, the two-Judge Bench did not consider binding
decisions. Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257]
failed to consider that the saving of pending proceedings in Mohd.
Idris [Mohd. Idris v. Sat Narain, (1966) 3 SCR 15 : AIR 1966 SC 1499]
and Manujendra Dutt [Manujendra Dutt v. Purnedu Prosad Roy
Chowdhury, (1967) 1 SCR 475 : AIR 1967 SC 1419] was a saving of
vested rights of the litigants that were being impacted by the repealing
Acts therein, and not because a right to forum is accrued once proceedings
have been initiated. Thereafter, a line of decisions followed Dhadi
Sahu [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257], to hold that a litigant
has a crystallised right to a forum once proceedings have been initiated. A
litigant’s vested rights (including the right to an appeal) prior to the
amendment or repeal are undoubtedly saved, in addition to substantive
rights envisaged under Section 6 of the General Clauses Act. This
protection does not extend to pure matters of procedure. Repeals or
amendments that effect changes in forum would ordinarily affect pending
proceedings, unless a contrary intention appears from the repealing or
amending statute.”
COURT MUST SATISFY ITSELF AS TO THE EXISTENCE OF
JURISDICTION
Section 9 of the Code
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“9. Courts to try all civil suits unless barred.–The Courts shall
(subject to the provisions herein contained) have jurisdiction to try
all suits of a civil nature excepting suits of which their cognisance
is either expressly or impliedly barred.
Explanation I.–A suit in which the right to property or to an
office is contested is a suit of a civil nature, notwithstanding that
such right may depend entirely on the decision of questions as to
religious rites or ceremonies.
Explanation II.–For the purposes of this section, it is
immaterial whether or not any fees are attached to the office
referred to in Explanation I or whether or not such office is
attached to a particular place.””
7. Reliance has also been placed by learned Senior Counsel for the
respondent on a judgment of Hon’ble Supreme Court in Sudhir G. Angur
and Ors. v. M. Sanjeev and Ors.6, in particular, on the following paragraph:
–
“11. In our view, Mr G.L. Sanghi is also right in submitting that it is the
law on the date of trial of the suit which is to be applied. In support of
this submission, Mr Sanghi relied upon the judgment in Shiv Bhagwan
Moti Ram Saraoji v. Onkarmal Ishar Dass [AIR 1952 Bom 365 : 54
Bom LR 330] wherein it has been held that no party has a vested right to
a particular proceeding or to a particular forum. It has been held that it is
well settled that all procedural laws are retrospective unless the
legislature expressly states to the contrary. It has been held that the
procedural laws in force must be applied at the date when the suit or
proceeding comes on for trial or disposal. It has been held that a court is
bound to take notice of the change in the law and is bound to administer
the law as it was when the suit came up for hearing. It has been held that
if a court has jurisdiction to try the suit, when it comes on for disposal, it
then cannot refuse to assume jurisdiction by reason of the fact that it had
no jurisdiction to entertain it at the date when it was instituted. We are in
complete agreement with these observations. As stated above, the
Mysore Act now stands repealed. It could not be denied that now the
Court has jurisdiction to entertain this suit.”
6
(2006) 1 SCC 141
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8. Learned Senior Counsel for the respondent further submitted that the
aforesaid judgments have not been considered in the judgment dated
07.07.2023. Thus, the present review petition has been filed seeking review of
the said judgment which suffers from the error apparent on the face of it.
9. Learned Senior Counsel for the respondent has also relied upon the
following judgments: –
a) Simplex Infrastructure v Energo Engineering Projects7, and
particularly on paragraph Nos. 3, 9, 18, 20 and 21 thereof, to contend
that lack of jurisdiction if an error apparent on the face of the record
and such order passed sans jurisdiction is liable to be reviewed.
b) Selection Committee for Admission v MP Nagaraj 8 , and
particularly on paragraph Nos. 1, 2 and 24, to contend that where a
Court takes a view inconsistent with the Supreme Court, it is an error
apparent on the face of the record and is liable to be reviewed.
c) Board of Control for Cricket v Netaji Cricket Club 9 , and
particularly on paragraph Nos. 88, 89, 90 and 91, to contend that
review is necessitated on account of some mistake or for any other
sufficient reason which may include misconception of fact or law and
the law has to bend before justice and nothing would preclude the7
MANU/DE/1947/2017
8
MANU/KA/0043/1972
9
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Court from rectifying the error.
d) M.M Thomas v State of Kerala10, and particularly on paragraph
Nos. 14, 16 and 17, to contend that High Courts are courts of record
and therefore have the inherent power to correct the record. If an error
apparent is noticed by the High Court, it is its duty to correct the same
in accordance with the law.
e) Rakesh Kesharwani v Imam Bada Shahedaan Karbala11, and
particularly on paragraph Nos. 1, 7 and 10, to contend that the Waqf
Amendment Act, 2013, is a procedural amendment, and has to be
applied retrospectively.
10. Per contra, learned counsel for the petitioner/non-applicant has
submitted that vide judgment dated 07.07.2023 learned Predecessor Bench of
this Court had allowed the revision petition filed by the petitioner and had set
aside the order of dismissal of eviction petition filed by the petitioner and an
eviction order was passed against the respondent herein. It is submitted that
the respondent for the first time during final arguments in the revision petition
had contended that the same was not maintainable on the ground that the
disputed property was a waqf property, and in view of Section 83 of the Waqf
Act, 1995, all matters relating to eviction of tenants in respect of waqf
properties must be indicated by the Waqf Tribunal. It is further submitted that
the eviction petition in the present case was filed by the petitioner/landlord in
10
(2000)1 SCC 666
11
MANU/MP/1158/2023
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2009, i.e., prior to the amendment of 2013 in Waqf Act, 1995. It is further
submitted that non-obstante clause in DRCA, which is a special statute,
overrides the general amendments in the Waqf Act in absence of any express
statutory provision to that effect.
11. It is the case of the petitioner/non-applicant that the procedural changes
introduced by Waqf Amendment Act, 2013, could not affect the substantive
rights of the parties, particularly in a case where subject eviction proceedings
were initiated prior to such amendment. The petitioner has refuted the
respondent’s assertion that the amendment by Waqf Amendment Act, 2013 to
Section 83 of the Waqf Act was procedural in nature, and is, therefore,
applicable retrospectively.
12. It is further submitted that the aforesaid objection regarding
applicability of Waqf Act was raised by the respondent in December 2022
despite being aware of the same since Amendment Act of 2013. It is further
submitted that the statutory tenants under DRCA could not be removed from
the jurisdiction of DRCA, even if, the property in question is a Waqf property
unless there is a specific provision for judicial order mandating such transfer
to Waqf Tribunal.
13. Learned counsel for the petitioner has placed relied on the judgment of
Hon’ble Supreme Court in Habib Alladin & Ors. v. Mohammed Ahmed12,
in particular, on paragraph Nos. 31, 32, 33, 37, 39, 40, 41, 42, 43, 44, 45, 46,
47, 49, 50, in support of the aforesaid contentions. The observations contained
12
2026 SCC OnLine SC 119
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in said paragraphs read thus: –
“31. It is trite that an Amendment will be retrospective only if
expressly provided for and at times, when it follows by necessary
implication. In Garikapati Veeraya v. N. Subbiah Choudhry23, a
Constitution Bench of this Court reaffirmed the principle that a
vested right can be taken away by a subsequent enactment which by
express words or necessary intendment makes it
24
retrospective. Dayawati v. Inderjit held that the relief granted by
an Act prohibiting future interest, is applicable to appeals pending
from decrees passed, looking at the necessary intendment. The
principles culled out in Hitendra Vishnu Thakur v. State of
Maharashtra25, in para 26 is extracted hereunder:
“26. The Designated Court has held that the amendment
would operate retrospectively and would apply to the pending
cases in which investigation was not complete on the date on
which the Amendment Act came into force and the challan
had not till then been filed in the court. From the law settled
by this Court in various cases the illustrative though not
exhaustive principles which emerge with regard to the ambit
and scope of an Amending Act and its retrospective operation
may be culled out as follows:
(i) A statute which affects substantive rights is presumed to be
prospective in operation unless made retrospective, either
expressly or by necessary intendment, whereas a statute
which merely affects procedure, unless such a construction is
textually impossible, is presumed to be retrospective in its
application, should not be given an extended meaning and
should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in
nature, whereas law relating to right of action and right of
appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no
such right exists in procedural law.
(iv) A procedural statute should not generally speaking be
applied retrospectively where the result would be to create
new disabilities or obligations or to impose new duties in
respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also
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prospective in operation, unless otherwise provided, either
expressly or by necessary implication.”
32. The amendment in 2013 providing an expanded definition
of ‘list of Auqaf’ was procedural in nature since it merely
enabled the disputes with respect to whether a property entered
in the register maintained under Section 37, is a waqf property
or not, also to be resolved by the Waqf Tribunal, as were
similar disputes pertaining to those included in the list under
Section 5(2) enabled to be resolved by the Tribunal. The right
of action remained as such but the forum in which the issue had
to be agitated was specified to be the Tribunal under the Act of
1995.
33. An amendment by way of substitution does not invariably
result in a retrospective application. In the Act of 1995,
originally the definition of ‘list of Waqfs’ included only that
notified under Section 5(2), which later was substituted,
including also the register maintained under Section 37; which
was in rectification of an anomaly, applicable from the inception of
the Act. In Zile Singh v. State of Haryana26, a three-Judge Bench
while reaffirming that retrospectivity is not to be presumed and the
presumption is to the contrary, held it was open for the legislature
to enact laws having retrospective operation, by express enactment
or by necessary implication from the language employed. It was
held so, in paragraphs 15, 17 and 19:
“15. Though retrospectivity is not to be presumed and rather
there is presumption against retrospectivity, according
to Craies (Statute Law, 7th Edn.), it is open for the legislature
to enact laws having retrospective operation. This can be
achieved by express enactment or by necessary implication
from the language employed. If it is a necessary implication
from the language employed that the legislature intended a
particular section to have a retrospective operation, the
courts will give it such an operation. In the absence of a
retrospective operation having been expressly given, the
courts may be called upon to construe the provisions and
answer the question whether the legislature had sufficiently
expressed that intention giving the statute retrospectivity.
Four factors are suggested as relevant: (i) general scope andSignature Not Verified
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purview of the statute; (ii) the remedy sought to be applied;
(iii) the former state of the law; and (iv) what it was the
legislature contemplated. (p. 388) The rule against
retrospectivity does not extend to protect from the effect of a
repeal, a privilege which did not amount to accrued right.”
xxx xxx xxx
“17. Maxwell states in his work on Interpretation of
Statutes (12th Edn.) that the rule against retrospective
operation is a presumption only, and as such it “may be
overcome, not only by express words in the Act but also by
circumstances sufficiently strong to displace it” (p. 225). If
the dominant intention of the legislature can be clearly and
doubtlessly spelt out, the inhibition contained in the rule
against perpetuity becomes of doubtful applicability as the
“inhibition of the rule” is a matter of degree which would
“vary secundum materiam” (p. 226). Sometimes, where the
sense of the statute demands it or where there has been an
obvious mistake in drafting, a court will be prepared to
substitute another word or phrase for that which actually
appears in the text of the Act.”
xxx xxx xxx
“19. The Constitution Bench in Shyam Sunder v. Ram
Kumar, [(2001) 8 SCC 24] has held:
“Ordinarily when an enactment declares the previous law, it
requires to be given retroactive effect. The function of a
declaratory statute is to supply an omission or to explain a
previous statute and when such an Act is passed, it comes into
effect when the previous enactment was passed. The
legislative power to enact law includes the power to declare
what was the previous law and when such a declaratory Act is
passed, invariably it has been held to be retrospective. Mere
absence of use of the word ‘declaration’ in an Act explaining
what was the law before may not appear to be a declaratory
Act but if the court finds an Act as declaratory or
explanatory, it has to be construed as retrospective.”
**** **** ****
37. More importantly, we cannot find Section 83 to be a provision
conferring jurisdiction on the Tribunal with respect to matters in
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other provisions of the Act, as already noticed in Ramesh
Gobindram6. Section 83 has a nominal heading of ‘Constitution of
the Tribunal etc’. and it enables the State Government by
notification in the official gazette to constitute as many Tribunals as
it may think fit for the determination of disputes, questions or other
matters relating to a waqf or waqf property under this Act. The last
three words have not been omitted in the amendment, as we found
in paragraph 10, which we will deal with more elaborately when
considering the ambit and scope of Section 83.
*** *** ***
39. The gamut of decisions referred to above, or most of them
were considered in Rashid Wali Beg5 which held, again, that the
amendment made by Act 27 of 2013 removed the basis of the
decision in Ramesh Gobindram6; which, with all the respect at
our command, we are unable to subscribe to. Rashid Wali
Beg5 was a case in which the defendant in a suit, challenged the
judgment of the High Court, which held that a permanent
injunction prayer before a Civil Court is not barred by Section
85 of the Act of 1995. The plaintiff filed the suit on the contention
that the predecessor-in-interest of the property had created a Waqf-
al-al-aulad and the Mutawalli was appointed by way of succession
from the descendants, which position came to be occupied by him;
in usurpation of his father’s right, as entrusted to him by the
grandmother due to the wayward life of the father. The defendants
at the instigation of the father of the plaintiff was alleged to have
encroached into the property and attempted constructions thereon.
The defendant who was the appellant before the Supreme Court,
filed a written statement admitting the existence of the waqf. Later,
the defendant took out an application under Order VII Rule 11 for
rejection of the plaint on the sole ground of the Civil Court having
no jurisdiction. The Civil Court accepted the prayer and rejected the
suit, and the First Appellate Court dismissed the appeal. The High
Court reversed the finding of the Courts below on the short ground
that the nature of the property was not a question involved in the
case and hence, the simpliciter injunction sought for would be
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various provisions and the reliefs which could be sought for before
a Tribunal and culled out the aspects on which proceedings could
be initiated before the Tribunal constituted under the Wakf Act of
1995 in paragraphs 54 which we extract hereunder: –
“54. In sum and substance, the Act makes a reference, to 3 types
of remedies, namely, that of a suit, application or appeal before the
Tribunal, in respect of the following matters:
54.1. Any question or dispute whether a property specified as waqf
property in the list of waqfs is a waqf property or not [Sections 6(1) &
7(1)].
54.2. A question or dispute whether a waqf specified in the list of
waqfs is a Shia Waqf or Sunni Waqf [Sections 6(1) & 7(1)].
54.3. Challenge to the settlement of a scheme for management of
the waqf or any direction issued in relation to such management
[Section 32(3)].
54.4. Challenge to an order for restitution/restoration of the
property of the waqf or an order for payment to the waqf of any
amount misappropriated or fraudulently retained by the mutawalli
[Section 33(4)].
54.5. Conditional attachment of the property of a mutawalli or any
other person [Section 35(1)].
54.6. Challenge to the removal or dismissal of an Executive
Officer or member of the staff [Section 38(7)].
54.7. Application by the Board, seeking an order for recovery of
possession of a property earlier used for religious purpose but later
ceased to be used as such [Section 39(3)].
54.8. Challenge to a direction issued by the Board to any Trust or
Society to get it registered [Section 40(4)].
54.9. Challenge to an order for recovery of money from the
mutawalli, as certified by the Auditor [Section 48(2)].
54.10. Challenge to an order for delivery of possession of a
property issued by the Collector [Section 52(4)].
54.11. Application by the Chief Executive Officer for the removal
of encroachment and for delivery of possession of a waqf property
[Section 54(3)].
54.12. Challenge to the removal of mutawalli from office [Section
64(4)].
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54.13. Challenge to an order superseding the Committee of
Management [Section 67(4)].
54.14. Challenge to the removal of a member of the Committee of
Management [Section 67(6)].
54.15. Challenge to any scheme framed by the Board for the
administration of waqf, containing a provision for the removal of the
mutawalli and the appointment of the person next in hereditary
succession [Section 69(3)].
54.16. Challenge to an order for recovery of contribution payable
by the waqf to the Board, from out of the monies lying in a bank
[Section 73(3)].
54.17. Any dispute, question or other matter relating to a waqf
[Section 83(1)].
54.18. Any dispute, question or other matter relating to a waqf
property [Section 83(1)].
54.19. Eviction of a tenant or determination of the rights and
obligations of lessor and lessee of waqf property [Section 83(1) after
its amendment under Act 27 of 2013].
54.20. Whenever a mutawalli fails to perform an act or duty which
he is liable to perform [Section 94].”
40. We have absolutely no doubt with respect to paragraphs
54.1 to 54.16 and 54.20; which we respectfully concur with.
The expansion of the jurisdiction based on Section 83 as has
been laid down in paragraphs 54.17 to 54.19, according to us
is contrary to the principles culled out in Ramesh
Gobindram6 and quite divergent from the interpretation of
Section 83 coming out in Ramesh Gobindram6.
41. This Court, no doubt, in Rashid Wali Beg5 looked at the
various decisions which followed Ramesh Gobindram6 and took
a contrary view, holding that the very basis of the decision was
removed by Act 27 of 2013. It was held that Section 83(1) even
as it stood before the amendment provided for determination by
the Tribunal, any dispute, question or other matter, (i) relating to
waqf and (ii) relating to a waqf property. Thus, holding that
Section 83 has two limbs conferring jurisdiction on the Tribunal
to decide questions arising with respect to (i) the waqf and (ii)
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the waqf property. To get over the divergence of opinion the
decision in Kiran Devi22 was relied on, a three-Judge Bench
decision to find that definitely if the Waqf Tribunal did not have
jurisdiction to decide the question, the Court would not have
held so in Kiran Devi22.
42. We are unable to agree. In Kiran Devi22 the plaintiff had
approached the Civil Court against the possession of a tenanted
premises by one of the defendants, on such demise being made
by the Waqf Board itself, of an admitted waqf property. Therein
the dispute was between the tenants, one of whom was supported
by the Waqf Board. The defendant tenant and the Waqf Board,
sailing together, requested for a transfer of the proceedings to the
Tribunal and later, before this Court a contention was raised that
the Tribunal did not have jurisdiction. True, the three-Judge
Bench despite referring to Ramesh Gobindram6 found that the
defendants having requested for a transfer to the Tribunal, could
not later challenge the jurisdiction especially when the matter
had attained finality before the Tribunal and there was no such
contention raised, even before the High Court. The High Court
reversed the order of the Trial Court only on the ground that the
surrender of tenancy was not proper. The above measure
employed by a three-Judge Bench cannot be said to have
overruled Ramesh Gobindram6. As was explicitly stated by the
three Judge bench, the decision turned on the principle that a
party to a litigation cannot approbate and reprobate and this was
a measure adopted to avoid multiplicity of litigation.
43. Quite similar is the context in Mumtaz Yarud Dowla
Wakf12 wherein Rashid Wali Beg5 was reaffirmed by another
two-Judge Bench. Therein also the proceedings for eviction were
commenced long prior to the amendment of 2013, before the
Tribunal which was never attempted to be challenged on the
ground of lack of absence of jurisdiction. The defendants,
despite a decree passed on 13.11.2002, continued to occupy the
property in which circumstance the waqf filed an execution
petition in 2014. Still later, after four years, a plea was raised on
jurisdiction relying on Faseela M18 and Ramesh
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Gobindram6 which was rightly rejected by this Court. In fact,
in Mumtaz Yarud Dowla Wakf12, the contention could have been
rejected based on the dictum in Kiran Devi22 and not necessarily
raising a doubt on Ramesh Gobindram6. In fact, if the suit for
eviction though instituted without jurisdiction before the
Tribunal, at the point of time this Court ruled on it, the
jurisdiction for removal of encroachment was squarely on the
Tribunal, by virtue of the Amendment Act 27 of 2013. No
purpose would have been served by a remand, and the litigation
would have merely prolonged.
44. Ramesh Gobindram6 as we noticed, was the first in the line
of the decisions cited hereinabove wherein the question arose as
to whether an eviction of a tenant can be sought for before the
Tribunal constituted under Act of 1995. As we have earlier
noticed with extracts from the decision, Ramesh
6
Gobindram considered exhaustively as to what is the
jurisdiction conferred on the Tribunal constituted under the Act
of 1995. It found that the decision on the question raised as to
whether a property is a waqf property or not would be under
Section 6(1) and 7(1) of the Act, confined to properties specified
in the list; which list includes the list under Section 5(2) and
those in the register maintained under Section 37. Section 6 (5)
though provided for an ouster of jurisdiction insofar as the
matters referred to in sub-section (1); it was found to be confined
to such questions since there were other issues that could be
raised before the Tribunal constituted under the Act, a few of
which were illustrated in paragraphs 26 and 27, which we have
extracted hereinabove. A more elaborate reference to the various
powers is found in Rashid Wali Beg5 as available in paragraphs
54.1 to 54.16 and 54.20. Section 85 was found to have brought a
wider ouster of jurisdiction of Civil Court, due to the conferment
of jurisdiction on the Tribunal by the other provisions noticed
hereinabove. It was categorically held in paragraph 32
of Ramesh Gobindram6 that Section 83 does not push the
exclusion of the jurisdiction of the Civil Court beyond what has
been provided in Section 6, Section 7 and Section 85 of the Act;
holding thereby unequivocally that Section 83 does not by itself
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confer any jurisdiction on the Tribunal and even according to us,
it merely enables the constitution of the Tribunal by the State.
45. Rashid Wali Beg5 not only found that Section 83 conferred
an expansive power on the Tribunal to decide every
question/dispute arising with respect to a waqf or waqf property;
but also held that such jurisdiction was available even before the
amendment and especially so after the amendment. In the teeth
of the above finding, we have to notice Section 83(1) before the
amendment and after the amendment:
Before the amendment of 2013
“Section 83(1): The State Government shall, by notification in the
Official Gazette, constitute as many Tribunals as it may think fit, for
the determination of any dispute, question or other matter relating to
a wakf or wakf property under this Act and define the local limits and
jurisdiction under this Act of each of such Tribunals.”
After the amendment of 2013
“Section 83(1): The State Government shall, by notification in the
Official Gazette, constitute as many Tribunals as it may think fit, for
the determination of any dispute, question or other matter relating to
a waqf or waqf property, eviction of a tenant or determination of
rights and obligations of the lessor and the lessee of such property,
under this Act and define the local limits and jurisdiction of such
Tribunals”
[underlining by us to emphasize the incorporation by amendment]
46. We cannot but notice that the decisions of this Court in Pritpal
Singh9 and Rashid Wali Beg5 specifically dealing with Section
83(1) extracted only the words “for the determination of any
dispute, question or other matter relating to a wakf or wakf
property” and omitted the words “under this Act”. The wakf or
wakf properties should thus be having a status under the Act which
is possible only by inclusion in the ‘list of auqaf’ which as of now
includes a list published after a survey under Chapter II or a
registration made under Chapter V. After the amendment, the
words “eviction of a tenant or determination of rights or
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obligations of a lessor and the lessee of such property” was brought
in between the words “wakf or wakf properties” and “under the
Act”. This was only an abundant clarification of the powers
conferred on the Tribunal, especially that of eviction of
encroachments, which power according to us was not conferred
under Section 83. It is Section 54 that confers the Tribunal with the
power to dislodge encroachers, brought in by the Amendment Act
of 2013. The amendment also incorporated a definition clause (ee),
for encroachment, under Section 3, which meant unauthorized
occupation of a waqf property including such occupation after the
expiry or termination of a tenancy, lease or license. The specific
power conferred on the Tribunal thus was under Section 54(3) &
(4) and not under Section 83(1).
47. Section 85 remained as such after the amendment of 2013 only
bringing in cosmetic changes as we noticed hereinabove. Section
83 does not confer any jurisdiction on the Tribunal, either/or an
omnibus consideration of any dispute, question or other matter
related to waqf or of waqf property, nor with respect to eviction of
a tenant or determination of the rights and obligations of lessor and
lessee of waqf property. It merely enables the constitution of the
Tribunal and the mere recital of what the Tribunal could do, is not
an expansive conferment of power especially considering the fact
that the statute confers such powers under specific provisions, yet
again Section 85 restricts the ouster of jurisdiction of the Civil
Court, Revenue Court or any other authority to those aspects which
are required by or under that Act to be determined by the Tribunal.
There is hence no absolute and all-pervasive ouster of jurisdiction
of the Civil Court even under Section 85 of the Act of 1995. The
definition of ‘waqf’ under Section 85, 3(r) and the applicability of
the Act of 1995 on all auqaf (Section 2) does not also determine
jurisdiction which, in resolution to disputes with respect to a
property being a waqf or not is expressly conferred on the Tribunal,
only with respect to those properties specified in the ‘list of Auqaf’.
This is the statutory imprimatur which cannot be deviated from by
Courts of law, especially when the statute could have provided
merely for all disputes with respect to auqaf to be determined by
the Tribunal; which it did not.
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48. We cannot but also notice that the Tribunal, though conferred
with the jurisdiction to remove encroachers, the power could be
invoked only by the Chief Executive Officer of the Board as per
Section 54(3) & (4), either suo motu or on a complaint. If the power
to move directly before the Tribunal was available under section
83, even prior to the amendment of 2013, there was no reason to
confer jurisdiction under Section 54 and much less reason to
provide specifically for removal of encroachment.
49. We hence respectfully affirm the principle of jurisdiction
conferred on the Tribunal under the Waqf Act, 1995 and the
ouster of jurisdiction of the Civil Court under Section 85 of the
said Act to be, as considered and declared in Ramesh
Gobindram6. There could be instances where Ramesh
Gobindram6 can be distinguished insofar as the eviction of
encroachers, which jurisdiction has now been specifically
conferred on the Tribunal by the amendment Act of 2013. The
amendment Act of 2013 removes the sub-stratum of the
decision in Ramesh Gobindram6 only to the extent of the
absence found, of the jurisdiction conferred on the Tribunal to
remove encroachers and does not, in any other manner,
interfere with the principle stated of the jurisdiction of the
Tribunal under the Act of 1995 and the jurisdiction of the Civil
Court having been ousted only to the extent of the specific
power conferred on the Tribunal by and under the Act.
50. Now, looking at the facts of the present case, a bare reading of
the plaint would indicate that neither is the property specified in the
‘list of auqaf’ as published in Chapter II nor registered under
Chapter V and hence the decision as to whether the property is a
waqf property or not cannot be decided by the Tribunal since the
property is not one specified in the ‘list of auqaf’, which is the
mandatory requirement under Section 6(1) and Section 7(1) of the
Waqf Act of 1995 to approach the Tribunal. We will not consider
the issue as to whether the property can be deemed to be a ‘waqf by
user’ since the question is still at large. The injunction simpliciter
sought for before the Tribunal does not fall within its jurisdiction
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and the plaint has to be rejected, which we do, allowing the
application of the defendant under Order VII, Rule 11. The order of
the Tribunal, ascertaining jurisdiction and that of the High Court,
affirming it are set aside.”
(emphasis supplied)
14. Learned counsel for the petitioner has further relied upon the following
judgments: –
a) Suhas H. Pophale v. Oriental Insurance Co. Ltd. 13 , and
particularly on paragraph Nos. 31, 32, 33, 34, 35, 36, 37, 38 and 39, to
contend that it was held, in the said case, that the appellant therein was
protected as a ‘deemed tenant’ under the Bombay Rent Act 14 before the
merger of the insurance company with a government company, and the
said protection continued under the Maharashtra Rent Control Act,
1999, as per the definition of ‘tenant’. It was submitted that generally,
legislation affecting substantive rights is prospective unless expressly
made retrospective. This principle prevents altering existing rights
unless the law clearly indicates such intent and the correct remedy for
eviction of the appellant, protected under the State Rent Control Act,
should have been sought through the procedure under the Bombay Rent
Act or its successor, not the Public Premises Act. It was submitted that
the appellant’s rights under the State Rent Control Act were affirmed in
the said judgment.
13
MANU/KA/0043/1972
14
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
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b) Videocon International Ltd. v. SEBI 15 , and particularly on
paragraph Nos. 38 and 45, to contend that the said case focused on the
principle that a right of appeal, whether absolute or limited, is a vested
substantive right and the same can only be altered or curtailed by an
amendment if expressly provided. It was further stated that the
amendment to Section 15Z of the Securities and Exchange Board of
India Act, 1992, altered the appellate forum from the High Court to the
Supreme Court and limited the scope of appeal to questions of law
only, thereby diminishing the appellate package available under the
unamended provision. It was further submitted that the court
emphasized that pending proceedings are governed by the law in force
at the commencement of the dispute unless expressly provided
otherwise by the amending provision. Consequently, all appeals
initiated before the amendment, despite being heard post-amendment,
retain the vested right to the appellate remedy available under the
unamended provision, and therefore, the Court concluded that appeals
filed before the amendment to Section 15Z of the said Act are
maintainable in their original form and must be adjudicated
accordingly.
c) Chiraguddin v. Urmila Rani 16 and particularly on paragraph
Nos. 5, 6, 9 and 10, to contend that challenging the eviction order on
the ground of effect of Amendment Act of 2013 after several years
would be inequitable and contrary to the principle of estoppel as
15
(2015) 4 SCC 33
16
2014 SCC OnLine Del 4703
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established in Martin and Harris Ltd. v. ADJ17.
d) Seth Nanak Chand Shandurain v. Tinnervelly- Tuticorin
Electric Supply Company Ltd. 18 , and particularly on paragraph
No.13, to contend that the said paragraph discusses Section 21 of the
CPC which deals with objections to the place of suing and it
emphasizes that a litigant cannot raise objections about the place of
suing at the appellate or revisional stage if such objections were not
raised at the earliest opportunity in the trial court, especially when
issues were settled. It was further stated that the section underscores the
principle that a litigant who participates in trial proceedings without
pressing objections to jurisdiction effectively waives those objections
and cannot subsequently challenge the judgment on those grounds. The
said para highlights that failure to raise objections in a timely manner
may not constitute a failure of justice.
e) Sow Chandra Kante & Anr. v. Sheikh Habib 19 and
particularly on paragraph No. 1, to contend that the review proceedings
do not amount to a re-hearing. A review of a judgment is a serious step
and reluctant resort to it is proper only where a glaring omission or
patent mistake or like grave error has crept in earlier by judicial
fallibility.
17
(1998) 1 SCC 732
18
1974 SCC OnLine Mad 12
19
(1975) 1 SCC 674
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f) Haridas Das v. Usha Rani Banik and Ors.20 and particularly
on paragraph Nos. 13, 14 and 15, to contend that the parameters are
prescribed in Order XLVII of the CPC and for the purposes of this lis,
permit the defendant to press for a rehearing “on account of some
mistake or error apparent on the face of the records or for any other
sufficient reason”. It is further submitted that it has been reiterated that
an error apparent on the face of the record for acquiring jurisdiction to
review must be such an error which may strike one on a mere looking
at the record and would not require any long-drawn process of
reasoning.
g) State of West Bengal v. Kamal Sengupta,21 and particularly on
paragraph Nos. 11 and 28, to contend that a Tribunal established under
the Act is entitled to review its order/decision only if either of the
grounds enumerated in Order XLVII Rule 1 of the CPC is available. It
was contended that this would necessarily mean that a Tribunal can
review its order/decision on the discovery of new or important matter
or evidence which the applicant could not produce at the time of initial
decision despite exercise of due diligence, or the same was not within
his knowledge or if it is shown that the order sought to be reviewed
suffers from some mistake or error apparent on the face of the record or
there exists some other reason, which, in the opinion of the Tribunal, is
sufficient for reviewing the earlier order/decision. It was further
submitted that a decision/order cannot be reviewed under Section
20
(2006) 4 SCC 78
21
(2008) 8 SCC 612
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22(3)(f) of the Administrative Tribunals Act, 1985, on the basis of
subsequent decision/judgment of a coordinate or larger bench of the
Tribunal or of a superior Court. While considering an application for
review, the Tribunal must confine its adjudication with reference to
material which was available at the time of initial decision. The
happening of some subsequent event or development cannot be taken
note of for declaring the initial order/decision as vitiated by an error
apparent and mere discovery of new or important matter or evidence is
not sufficient ground for review. The party seeking review has also to
show that such matter or evidence was not within its knowledge and
even after the exercise of due diligence, the same could not be
produced before the Court/Tribunal earlier.
ANALYSIS AND FINDINGS
15. At the very outset, it is pertinent to note that vide order dated
22.03.2024, learned Predecessor Bench of this Court had observed that the
question involved in the present review petition is the applicability of the
Waqf Amendment Act, 2013, with retrospective or prospective effect qua the
appropriate forum, and whether this aspect can be examined in the review
jurisdiction.
16. Learned Single Judge, while disposing of the captioned revision
petition, with respect to question of maintainability of the eviction petition
before learned ARC on the ground that post the Waqf Amendment Act, 2013
as per Section 83 of the Waqf Act, 1995, only the Waqf Tribunal had
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jurisdiction to deal with matters relating to eviction of a tenant of a Waqf
property, and Section 85 of the said Act, bars jurisdiction of other Courts in
respect of the matters which the Waqf Tribunal is empowered to decide, had
observed and held as under: –
“5. At the outset, the respondent has questioned the maintainability
of the eviction petition before the learned ARC on the ground that
under section 83 of the Wakf Act, 1995 only the Wakf Tribunal had
jurisdiction to deal with matters relating to eviction of a tenant of a
Wakf property, section 85 of the said Act bars jurisdiction of other
courts in respect of the matters which the Wakf Tribunal is
empowered to decide, therefore, the eviction petition could not
have been decided or entertained by the learned ARC. Reliance is
placed by the respondent upon the following judgments: Rashid
Wali Beg vs Farid Pindari (2022) 4 SCC 414; Syed Amir Ali vs
Anjuman-e-Maidan [CM(M) 521/2021 decided on 02.12.2021 by
High Court of Delhi; and Mehnish Adil vs Delhi Wakf Board 2002
(286) DLT 654.
6. Refuting the aforesaid contentions, the learned counsel for the
petitioner submits that in view of the decision of the Supreme Court
in Ramesh Gobindram vs Sugra Humayun Mirza Wakf (2010) 8
SCC 726, which while dealing with an eviction petition prior to the
amendment of section 83 of the Wakf Act in November, 2013 held
that an eviction petition against a Wakf property would also be
maintainable before a Civil Court. In Rashid Wali (supra) the
Supreme Court held as under:
“….45. Interestingly, the basis of the decision in Ramesh Gobindram was
removed through an amendment under Act 27 of 2013. As we have stated
elsewhere, Ramesh Gobindram sought to address the question whether a
Waqf Tribunal was competent to entertain and adjudicate upon disputes
regarding eviction of persons in occupation of what are admittedly waqf
properties. Since this Court answered the question in the negative,
Section 83(1) was amended by Act 27 of 2013 to include the words,
“eviction of tenant or determination of rights and obligations of the
lessor and lessee of such property”.”
7. However, the 2013 Amendment does not make section 83 of the
Wakf Act applicable retrospectively. The eviction petition relates to
24.12.2009, i.e. more than over four years before the amendment
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came into effect. No notification was issued regarding transfer to
the Wakf Tribunal of all cases relating to wakfs pending before the
ARC under the DRC Act. Interestingly, this issue was never raised
before by the tenant. On 11.02.2015, this court had remanded the
matter to the learned ARC for decision on the issue of leave to
defend. The said remand and direction received affirmation of the
Supreme Court on 07.05.2015.
8. In view of the above, the eviction petition was maintainable
before the learned ARC. The tenant’s contentions to the contrary
are untenable and are rejected. The respondent’s reliance upon the
judgments Syed Amir Ali (supra) and Mehnish Adil (supra) dealt
with cases which were filed after the 2013 amendment of the Wakf
Act, proceedings initiated under the Wakf Act in 2013 under
Section 55 of the Wakf Act apropos directions to Sub-Divisional
Magistrate for implementation of eviction orders and removal of
encroachment from Wakf property. It did not relate to eviction of a
tenant under the Delhi Rent Control Act.”
17. In the present review petition, with regard to the aforesaid issue of
retrospective effect of Waqf Amendment Act, 2013, following grounds have
been urged on behalf of the respondent/applicant: –
“9. That there are errors apparent on the face of the record in the
impugned judgment. The respondents seeks to review the impugned
judgment on the following grounds:
xxx xxx xxx
C. Because the Hon’ble court erred in not deciding the contention
of the petitioner that the aforesaid amendment i.e Section 83 and 85
of the Wakf Act giving power to Wakf Tribunal to decide disputes
relating to eviction of tenants would operate as a bar to the present
petition as it is settled law that no person has a vested right in a
course of procedure. He has only the right of proceeding in the
manner prescribed. If by a statutory change the mode of procedure
is altered, the parties are to proceed according to the altered mode,
without exception, unless there is a different stipulation. Thus,
since the procedure has been altered and the power of eviction has
been conferred upon the Wakf Tribunal, the present eviction
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incorporated in the Main points of Arguments filed before this
Hon’ble court and was also orally argued before this Hon’ble court.
The authorities titled Shiv Shakti Coop Housing Vs Swaraj
Developers reported as Manu/SC/0335/2003 and Rakesh
Kesharwani Vs Imam Bada Shahedaan Karbala reported as
Manu/MP/1158/2023 relied upon by the respondent were not
considered by the Hon’ble court while deciding the petition. Had
the said contention and authority been considered by the Hon’ble
court it would have been established that the eviction petition was
not’ maintainable before the Ld Rent Controller after the
amendment to Wakf Act.
xxx xxx xxx
F. Because the Hon’ble court erred in not even referring to the
binding precedent of Shiv Shakti Coop Housing Vs Swaraj
Developers reported as Manu/SC/0335/2003 of the Hon’ble
Supreme Court holding that procedural amendments are
retrospective in nature and judgment of Rakesh Kesharwani Vs
Imam Bada Shahedaan Karbala reported as Manu/MP/1 158/2023
wherein it was held that aforesaid amendments to Wakf Act are
retrospective in nature. Thus, there is an error apparent on the face
of record as the aforesaid binding precedents were not considered
while passing the impugned judgment.”
18. At this stage, it is apposite to refer to judicial precedent with respect to
the grounds for review under Order XLVII Rule 1 of the CPC, and the scope
and ambit of the Court’s power under this provision as has been summarised
in Shri Ram Sahu (Dead) Through Legal Representatives And Others v.
Vinod Kumar Rawat And Others22, wherein it has been observed and held
as under: –
“7. While considering the aforesaid question, the scope and ambit
of the Court’s power under Section 114 read with Order 47 Rule
1CPC is required to be considered and for that few decisions of this
Court are required to be referred to.
22
(2020) 13 SCC 1
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7.1. In Haridas Das v. Usha Rani Banik [Haridas Das v. Usha
Rani Banik, (2006) 4 SCC 78] while considering the scope and
ambit of Section 114CPC read with Order 47 Rule 1CPC it is
observed and held in paras 14 to 18 as under : (SCC pp. 83-84)
“14. In Meera Bhanja v. Nirmala Kumari Choudhury [Meera
Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170] it was
held that : (SCC pp. 172-73, para 8)‘8. It is well settled that the review proceedings are not by
way of an appeal and have to be strictly confined to the scope
and ambit of Order 47 Rule 1CPC. In connection with the
limitation of the powers of the court under Order 47 Rule 1,
while dealing with similar jurisdiction available to the High
Court while seeking to review the orders under Article 226 of
the Constitution of India, this Court in Aribam Tuleshwar
Sharma v. Aribam Pishak Sharma [Aribam Tuleshwar
Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389] speaking
through Chinnappa Reddy, J. has made the following pertinent
observations : (SCC p. 390, para 3)“3. … It is true … there is nothing in Article 226 of the
Constitution to preclude the High Court from exercising the
power of review which inheres in every court of plenary
jurisdiction to prevent miscarriage of justice or to correct grave
and palpable errors committed by it. But, there are definitive
limits to the exercise of the power of review. The power of
review may be exercised on the discovery of new and
important matter or evidence which, after the exercise of due
diligence was not within the knowledge of the person seeking
the review or could not be produced by him at the time when
the order was made; it may be exercised where some mistake
or error apparent on the face of the record is found, it may also
be exercised on any analogous ground. But, it may not be
exercised on the ground that the decision was erroneous on
merits. That would be the province of a court of appeal. A
power of review is not to be confused with appellate powers
which may enable an appellate court to correct all manner of
errors committed by the subordinate court.” ‘
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15. A perusal of Order 47 Rule 1 shows that review of a
judgment or an order could be sought : (a) from the discovery of
new and important matters or evidence which after the exercise of
due diligence was not within the knowledge of the applicant; (b)
such important matter or evidence could not be produced by the
applicant at the time when the decree was passed or order made;
and (c) on account of some mistake or error apparent on the face
of the record or any other sufficient reason.
16. In Aribam Tuleshwar Sharma v. Aribam Pishak
Sharma [Aribam Tuleshwar Sharma v. Aribam Pishak Sharma,
(1979) 4 SCC 389] , this Court held that there are definite limits
to the exercise of power of review. In that case, an application
under Order 47 Rule 1 read with Section 151 of the Code was
filed which was allowed and the order passed by the Judicial
Commissioner was set aside and the writ petition was dismissed.
On an appeal to this Court it was held as under : (SCC p. 390,
para 3)
‘3. It is true as observed by this Court in Shivdev
Singh v. State of Punjab [Shivdev Singh v. State of Punjab, AIR
1963 SC 1909] there is nothing in Article 226 of the
Constitution to preclude a High Court from exercising the power
of review which inheres in every court of plenary jurisdiction to
prevent miscarriage of justice or to correct grave and palpable
errors committed by it. But, there are definitive limits to the
exercise of the power of review. The power of review may be
exercised on the discovery of new and important matter or
evidence which, after the exercise of due diligence was not
within the knowledge of the person seeking the review or could
not be produced by him at the time when the order was made; it
may be exercised where some mistake or error apparent on the
face of the record is found; it may also be exercised on any
analogous ground. But, it may not be exercised on the ground
that the decision was erroneous on merits. That would be the
province of a court of appeal. A power of review is not to be
confused with appellate powers which may enable an appellate
court to correct all manner of errors committed by the
subordinate court.’
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17. The judgment in Aribam case [Aribam Tuleshwar
Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389] has been
followed in Meera Bhanja [Meera Bhanja v. Nirmala Kumari
Choudhury, (1995) 1 SCC 170] . In that case, it has been
reiterated that an error apparent on the face of the record for
acquiring jurisdiction to review must be such an error which may
strike one on a mere looking at the record and would not require
any long-drawn process of reasoning. The following observations
in connection with an error apparent on the face of the record
in Satyanarayan Laxminarayan Hegde v. Mallikarjun
Bhavanappa Tirumale [Satyanarayan Laxminarayan
Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137]
were also noted : (AIR pp. 141-42, para 17)
’17. … An error which has to be established by a long-drawn
process of reasoning on points where there may conceivably be
two opinions can hardly be said to be an error apparent on the
face of the record. Where an alleged error is far from self-
evident and if it can be established, it has to be established, by
lengthy and complicated arguments, such an error cannot be
cured by a writ of certiorari according to the rule governing the
powers of the superior court to issue such a writ.’
18. It is also pertinent to mention the observations of this
Court in Parsion Devi v. Sumitri Devi [Parsion Devi v. Sumitri
Devi, (1997) 8 SCC 715] . Relying upon the judgments
in Aribam [Aribam Tuleshwar Sharma v. Aribam Pishak Sharma,
(1979) 4 SCC 389] and Meera Bhanja [Meera Bhanja v. Nirmala
Kumari Choudhury, (1995) 1 SCC 170] it was observed as under :
(SCC p. 719, para 9)
‘9. Under Order 47 Rule 1CPC a judgment may be open to
review inter alia if there is a mistake or an error apparent on the
face of the record. An error which is not self-evident and has to
be detected by a process of reasoning, can hardly be said to be
an error apparent on the face of the record justifying the court to
exercise its power of review under Order 47 Rule 1CPC. In
exercise of the jurisdiction under Order 47 Rule 1CPC it is not
permissible for an erroneous decision to be ‘reheard and
corrected’. A review petition, it must be remembered has aSignature Not Verified
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limited purpose and cannot be allowed to be ‘an appeal in
disguise’.’ ”
7.2. In Lily Thomas v. Union of India [Lily Thomas v. Union of
India, (2000) 6 SCC 224 : 2000 SCC (Cri) 1056] , it is observed
and held that the power of review can be exercised for correction of
a mistake but not to substitute a view. Such powers can be
exercised within the limits of the statute dealing with the exercise
of power. It is further observed in the said decision that the words
“any other sufficient reason” appearing in Order 47 Rule 1CPC
must mean “a reason sufficient on grounds at least analogous to
those specified in the rule” as was held in Chhajju
Ram v. Neki [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11 :
(1921-22) 49 IA 144 : AIR 1922 PC 112] and approved by this
Court in Moran Mar Basselios Catholicos v. Mar Poulose
Athanasius [Moran Mar Basselios Catholicos v. Mar Poulose
Athanasius, AIR 1954 SC 526] .
7.3. In Inderchand Jain v. Motilal [Inderchand Jain v. Motilal,
(2009) 14 SCC 663 : (2009) 5 SCC (Civ) 461] in paras 7 to 11 it is
observed and held as under : (SCC pp. 668-69)“7. Section 114 of the Code of Civil Procedure (for short “the
Code”) provides for a substantive power of review by a civil court
and consequently by the appellate courts. The words “subject as
aforesaid” occurring in Section 114 of the Code mean subject to
such conditions and limitations as may be prescribed as appearing
in Section 113 thereof and for the said purpose, the procedural
conditions contained in Order 47 of the Code must be taken into
consideration. Section 114 of the Code although does not
prescribe any limitation on the power of the court but such
limitations have been provided for in Order 47 of the Code; Rule
1 whereof reads as under : (Kamal Sengupta case [State of
W.B. v. Kamal Sengupta, (2008) 8 SCC 612 : (2008) 2 SCC
(L&S) 735] , SCC p. 631, para 17)’17. The power of a civil court to review its
judgment/decision is traceable in Section 114CPC. The
grounds on which review can be sought are enumerated in
Order 47 Rule 1CPC, which reads as under:
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“1. Application for review of judgment.–(1) Any person
considering himself aggrieved–
(a) by a decree or order from which an appeal is allowed,
but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small
Causes,and who, from the discovery of new and important matter or
evidence which, after the exercise of due diligence, was not
within his knowledge or could not be produced by him at the
time when the decree was passed or order made, or on account
of some mistake or error apparent on the face of the record, or
for any other sufficient reason, desires to obtain a review of the
decree passed or order made against him, may apply for a
review of judgment of the court which passed the decree or
made the order.”
8. An application for review would lie inter alia when the
order suffers from an error apparent on the face of the record
and permitting the same to continue would lead to failure of
justice. In Rajender Kumar v. Rambhai [Rajender
Kumar v. Rambhai, (2007) 15 SCC 513 : (2010) 3 SCC (Cri)
584] this Court held : (SCC p. 514, para 6)
‘6. The limitations on exercise of the power of review are
well settled. The first and foremost requirement of entertaining
a review petition is that the order, review of which is sought,
suffers from any error apparent on the face of the order and
permitting the order to stand will lead to failure of justice. In
the absence of any such error, finality attached to the
judgment/order cannot be disturbed.’
9. The power of review can also be exercised by the court in
the event discovery of new and important matter or evidence
takes place which despite exercise of due diligence was not
within the knowledge of the applicant or could not be produced
by him at the time when the order was made. An application for
review would also lie if the order has been passed on account of
some mistake. Furthermore, an application for review shall also
lie for any other sufficient reason.
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10. It is beyond any doubt or dispute that the review court
does not sit in appeal over its own order. A rehearing of the
matter is impermissible in law. It constitutes an exception to the
general rule that once a judgment is signed or pronounced, it
should not be altered. It is also trite that exercise of inherent
jurisdiction is not invoked for reviewing any order.
11. Review is not appeal in disguise. In Lily
Thomas v. Union of India [Lily Thomas v. Union of India,
(2000) 6 SCC 224 : 2000 SCC (Cri) 1056] this Court held :
(SCC p. 251, para 56)
’56. It follows, therefore, that the power of review can be
exercised for correction of a mistake but not to substitute a view.
Such powers can be exercised within the limits of the statute
dealing with the exercise of power. The review cannot be treated
like an appeal in disguise.’ ”
8. The dictionary meaning of the word “review” is “the act of
looking, offer something again with a view to correction or
improvement”. It cannot be denied that the review is the creation of a
statute. In Patel Narshi Thakershi v. Pradyumansinghji
Arjunsinghji [Patel Narshi Thakershi v. Pradyumansinghji
Arjunsinghji, (1971) 3 SCC 844] , this Court has held that the power
of review is not an inherent power. It must be conferred by law
either specifically or by necessary implication. The review is also not
an appeal in disguise.
9. What can be said to be an error apparent on the face of the
proceedings has been dealt with and considered by this Court
in T.C. Basappa v. T. Nagappa [T.C. Basappa v. T. Nagappa, AIR
1954 SC 440] . It is held that such an error is an error which is a
patent error and not a mere wrong decision. In Hari Vishnu
Kamath v. Syed Ahmad Ishaque [Hari Vishnu Kamath v. Syed
Ahmad Ishaque, (1955) 1 SCR 1104 : AIR 1955 SC 233] , it is
observed as under : (SCC p. 244, para 23)“23. … It is essential that it should be something more than a
mere error; it must be one which must be manifest on the face of
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however, is not so much in the statement of the principle as in its
application to the facts of a particular case. When does an error
cease to be mere error, and become an error apparent on the face
of the record? The learned counsel on either side were unable to
suggest any clear-cut rule by which the boundary between the two
classes of errors could be demarcated.”
9.1. In Parsion Devi v. Sumitri Devi [Parsion Devi v. Sumitri Devi,
(1997) 8 SCC 715] in paras 7 to 9 it is observed and held as under :
(SCC pp. 718-19)
“7. It is well settled that review proceedings have to be strictly
confined to the ambit and scope of Order 47 Rule 1CPC.
In Thungabhadra Industries Ltd. v. State of A.P. [Thungabhadra
Industries Ltd. v. State of A.P., AIR 1964 SC 1372] this Court
opined : (AIR p. 1377, para 11)
’11. What, however, we are now concerned with is whether
the statement in the order of September 1959 that the case did
not involve any substantial question of law is an ‘error apparent
on the face of the record’). The fact that on the earlier occasion
the Court held on an identical state of facts that a substantial
question of law arose would not per se be conclusive, for the
earlier order itself might be erroneous. Similarly, even if the
statement was wrong, it would not follow that it was an ‘error
apparent on the face of the record’, for there is a distinction
which is real, though it might not always be capable of
exposition, between a mere erroneous decision and a decision
which could be characterised as vitiated by ‘error apparent’. A
review is by no means an appeal in disguise whereby an
erroneous decision is reheard and corrected, but lies only for
patent error.’
8. Again, in Meera Bhanja v. Nirmala Kumari
Choudhury [Meera Bhanja v. Nirmala Kumari Choudhury,
(1995) 1 SCC 170] while quoting with approval a passage
from Aribam Tuleshwar Sharma v. Aribam Pishak
Sharma [Aribam Tuleshwar Sharma v. Aribam Pishak Sharma,
(1979) 4 SCC 389] this Court once again held that review
proceedings are not by way of an appeal and have to be strictly
confined to the scope and ambit of Order 47 Rule 1CPC.
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9. Under Order 47 Rule 1CPC a judgment may be open to
review inter alia if there is a mistake or an error apparent on the
face of the record. An error which is not self-evident and has to
be detected by a process of reasoning, can hardly be said to be
an error apparent on the face of the record justifying the court
to exercise its power of review under Order 47 Rule 1CPC. In
exercise of the jurisdiction under Order 47 Rule 1CPC it is not
permissible for an erroneous decision to be “reheard and
corrected”. A review petition, it must be remembered has a
limited purpose and cannot be allowed to be “an appeal in
disguise”.”
(emphasis in original)
9.2. In State of W.B. v. Kamal Sengupta [State of W.B. v. Kamal
Sengupta, (2008) 8 SCC 612 : (2008) 2 SCC (L&S) 735] , this Court
had an occasion to consider what can be said to be “mistake or error
apparent on the face of record”. In paras 22 to 35 it is observed and
held as under : (SCC pp. 633-38)
“22. The term “mistake or error apparent” by its very
connotation signifies an error which is evident per se from the
record of the case and does not require detailed examination,
scrutiny and elucidation either of the facts or the legal position. If
an error is not self-evident and detection thereof requires long
debate and process of reasoning, it cannot be treated as an error
apparent on the face of the record for the purpose of Order 47
Rule 1CPC or Section 22(3)(f) of the Act. To put it differently an
order or decision or judgment cannot be corrected merely because
it is erroneous in law or on the ground that a different view could
have been taken by the court/tribunal on a point of fact or law. In
any case, while exercising the power of review, the court/tribunal
concerned cannot sit in appeal over its judgment/decision.
23. We may now notice some of the judicial precedents in
which Section 114 read with Order 47 Rule 1CPC and/or Section
22(3)(f) of the Act have been interpreted and limitations on the
power of the civil court/tribunal to review its judgment/decision
have been identified.
24. In Kotagiri Venkata Subbamma Rao v. Vellanki
Venkatarama Rao [Kotagiri Venkata Subbamma Rao v. Vellanki
Venkatarama Rao, 1900 SCC OnLine PC 12 : (1899-1900) 27 IA
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197] the Privy Council interpreted Sections 206 and 623 of the
Civil Procedure Code and observed : (SCC OnLine PC : IA p.
205)
‘… Section 623 enables any of the parties to apply for a
review of any decree on the discovery of new and important
matter and evidence, which was not within his knowledge, or
could not be produced by him at the time the decree was passed,
or on account of some mistake or error apparent on the face of
the record, or for any other sufficient reason. It is not necessary
to decide in this case whether the latter words should be
confined to reasons strictly ejusdem generic with those
enumerated, as was held in Roy Meghraj v. Beejoy Gobind
Burral [Roy Meghraj v. Beejoy Gobind Burral, ILR (1875) 1
Cal 197] . In the opinion of their Lordships, the ground of
amendment must at any rate be something which existed at the
date of the decree, and the section does not authorise the review
of a decree which was right when it was made on the ground of
the happening of some subsequent event.’
25. In Hari Sankar Pal v. Anath Nath Mitter [Hari Sankar
Pal v. Anath Nath Mitter, 1949 SCC OnLine FC 4 : (1949-50) 11
FCR 36] a five-Judge Bench of the Federal Court while
considering the question whether the Calcutta High Court was
justified in not granting relief to non-appealing party, whose
position was similar to that of the successful appellant, held :
(SCC OnLine FC : FCR p. 48)
‘That a decision is erroneous in law is certainly no ground
for ordering review. If the court has decided a point and decided
it erroneously, the error could not be one apparent on the face of
the record or even analogous to it. When, however, the court
disposes of a case without adverting to or applying its mind to
a provision of law which gives it jurisdiction to act in a
particular way, that may amount to an error analogous to one
apparent on the face of the record sufficient to bring the case
within the purview of Order 47 Rule 1 of the Civil Procedure
Code.’
26. In Moran Mar Basselios Catholicos v. Mar Poulose
Athanasius [Moran Mar Basselios Catholicos v. Mar Poulose
Athanasius, AIR 1954 SC 526] this Court interpreted the
provisions contained in the Travancore Code of Civil Procedure
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which are analogous to Order 47 Rule 1 and observed : (AIR p.
538, para 32)
’32. … Under the provisions in the Travancore Code of Civil
Procedure which is similar in terms to Order 47 Rule 1 of our
Code of Civil Procedure, 1908, the court of review has only a
limited jurisdiction circumscribed by the definitive limits fixed
by the language used therein.
It may allow a review on three specified grounds, namely, (i)
discovery of new and important matter or evidence which, after
the exercise of due diligence, was not within the applicant’s
knowledge or could not be produced by him at the time when
the decree was passed, (ii) mistake or error apparent on the face
of the record and (iii) for any other sufficient reason.
It has been held by the Judicial Committee that the words
‘any other sufficient reason’ must mean “a reason sufficient on
grounds, least analogous to those specified in the rule”.’
27. In Thungabhadra Industries Ltd. v. State of
A.P. [Thungabhadra Industries Ltd. v. State of A.P., AIR 1964 SC
1372] it was held that a review is by no means an appeal in
disguise whereof an erroneous decision can be corrected.
28. In Parsion Devi v. Sumitri Devi [Parsion Devi v. Sumitri
Devi, (1997) 8 SCC 715] it was held as under : (SCC p. 716)
‘Under Order 47 Rule 1CPC a judgment may be open to
review inter alia if there is a mistake or an error apparent on the
face of the record. An error which is not self-evident and has to
be detected by a process of reasoning, can hardly be said to be
an error apparent on the face of the record justifying the court
to exercise its power of review under Order 47 Rule 1CPC. In
exercise of the jurisdiction under Order 47 Rule 1CPC it is not
permissible for an erroneous decision to be “reheard and
corrected”. There is a clear distinction between an erroneous
decision and an error apparent on the face of the record. While
the first can be corrected by the higher forum, the latter only can
be corrected by exercise of the review jurisdiction. A review
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petition has a limited purpose and cannot be allowed to be “an
appeal in disguise”.’
29. In Haridas Das v. Usha Rani Banik [Haridas Das v. Usha
Rani Banik, (2006) 4 SCC 78] this Court made a reference to the
Explanation added to Order 47 by the Code of Civil Procedure
(Amendment) Act, 1976 and held : (SCC p. 82, para 13)
’13. In order to appreciate the scope of a review, Section
114CPC has to be read, but this section does not even adumbrate
the ambit of interference expected of the court since it merely
states that it ‘may make such order thereon as it thinks fit’. The
parameters are prescribed in Order 47CPC and for the purposes
of this lis, permit the defendant to press for a rehearing ‘on
account of some mistake or error apparent on the face of the
records or for any other sufficient reason’. The former part of
the rule deals with a situation attributable to the applicant, and
the latter to a jural action which is manifestly incorrect or on
which two conclusions are not possible. Neither of them
postulate a rehearing of the dispute because a party had not
highlighted all the aspects of the case or could perhaps have
argued them more forcefully and/or cited binding precedents to
the court and thereby enjoyed a favourable verdict. This is
amply evident from the Explanation to Rule 1 of Order 47 which
states that the fact that the decision on a question of law on
which the judgment of the court is based has been reversed or
modified by the subsequent decision of a superior court in any
other case, shall not be a ground for the review of such
judgment. Where the order in question is appealable the
aggrieved party has adequate and efficacious remedy and the
court should exercise the power to review its order with the
greatest circumspection.’
30. In Aribam Tuleshwar Sharma v. Aribam Pishak
Sharma [Aribam Tuleshwar Sharma v. Aribam Pishak Sharma,
(1979) 4 SCC 389] this Court considered the scope of the High
Courts’ power to review an order passed under Article 226 of the
Constitution, referred to an earlier decision in Shivdev
Singh v. State of Punjab [Shivdev Singh v. State of Punjab, AIR
1963 SC 1909] and observed : (Aribam Tuleshwar case [Aribam
Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389]
, SCC p. 390, para 3)
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‘3. … It is true as observed by this Court in Shivdev
Singh v. State of Punjab [Shivdev Singh v. State of Punjab, AIR
1963 SC 1909] , there is nothing in Article 226 of the
Constitution to preclude a High Court from exercising the power
of review which inheres in every court of plenary jurisdiction to
prevent miscarriage of justice or to correct grave and palpable
errors committed by it. But, there are definitive limits to the
exercise of the power of review. The power of review may be
exercised on the discovery of new and important matter or
evidence which, after the exercise of due diligence was not
within the knowledge of the person seeking the review or could
not be produced by him at the time when the order was made; it
may be exercised where some mistake or error apparent on the
face of the record is found; it may also be exercised on any
analogous ground. But, it may not be exercised on the ground
that the decision was erroneous on merits. That would be the
province of a court of appeal. A power of review is not to be
confused with appellate powers which may enable an appellate
court to correct all manner of errors committed by the
subordinate court.’
31. In K. Ajit Babu v. Union of India [K. Ajit Babu v. Union of
India, (1997) 6 SCC 473 : 1997 SCC (L&S) 1520] , it was held
that even though Order 47 Rule 1 is strictly not applicable to the
tribunals, the principles contained therein have to be extended to
them, else there would be no limitation on the power of review
and there would be no certainty or finality of a decision. A
slightly different view was expressed in Gopabandhu
Biswal v. Krishna Chandra Mohanty [Gopabandhu
Biswal v. Krishna Chandra Mohanty, (1998) 4 SCC 447 : 1998
SCC (L&S) 1147] . In that case it was held that the power of
review granted to the tribunals is similar to the power of a civil
court under Order 47 Rule 1.
32. In Ajit Kumar Rath v. State of Orissa [Ajit Kumar
Rath v. State of Orissa, (1999) 9 SCC 596 : 2000 SCC (L&S)
192] , this Court reiterated that power of review vested in the
Tribunal is similar to the one conferred upon a civil court and
held : (SCC p. 608, paras 30-31)
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’30. The provisions extracted above indicate that the power
of review available to the Tribunal is the same as has been given
to a court under Section 114 read with Order 47CPC. The power
is not absolute and is hedged in by the restrictions indicated in
Order 47. The power can be exercised on the application of a
person on the discovery of new and important matter or
evidence which, after the exercise of due diligence, was not
within his knowledge or could not be produced by him at the
time when the order was made. The power can also be exercised
on account of some mistake or error apparent on the face of the
record or for any other sufficient reason. A review cannot be
claimed or asked for merely for a fresh hearing or arguments or
correction of an erroneous view taken earlier, that is to say, the
power of review can be exercised only for correction of a patent
error of law or fact which stares in the face without any
elaborate argument being needed for establishing it. It may be
pointed out that the expression ‘any other sufficient reason’ used
in Order 47 Rule 1 means a reason sufficiently analogous to
those specified in the Rule.
31. Any other attempt, except an attempt to correct an
apparent error or an attempt not based on any ground set out in
Order 47, would amount to an abuse of the liberty given to the
Tribunal under the Act to review its judgment.’
33. In State of Haryana v. M.P. Mohla [State of
Haryana v. M.P. Mohla, (2007) 1 SCC 457 : (2007) 1 SCC
(L&S) 303] this Court held as under : (SCC pp. 465-66, para 27)
’27. A review petition filed by the appellants herein was not
maintainable. There was no error apparent on the face of the
record. The effect of a judgment may have to be considered
afresh in a separate proceeding having regard to the subsequent
cause of action which might have arisen but the same by itself
may not be a ground for filing an application for review.’
34. Gopal Singh v. State Cadre Forest Officers’ Assn. [Gopal
Singh v. State Cadre Forest Officers’ Assn., (2007) 9 SCC 369 :
(2007) 2 SCC (L&S) 819] this Court held that after rejecting the
original application filed by the appellant, there was no
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revision of the appellant. Some of the observations made in that
judgment are extracted below : (SCC p. 387, para 40)’40. The learned counsel for the State also pointed out that
there was no necessity whatsoever on the part of the Tribunal to
review its own judgment. Even after the microscopic
examination of the judgment of the Tribunal we could not find a
single reason in the whole judgment as to how the review was
justified and for what reasons. No apparent error on the face of
the record was pointed, nor was it discussed. Thereby the
Tribunal sat as an appellate authority over its own judgment.
This was completely impermissible and we agree with the High
Court (Sinha, J.) that the Tribunal has travelled out of its
jurisdiction to write a second order in the name of reviewing its
own judgment. In fact the learned counsel for the appellant did
not address us on this very vital aspect.’
35. The principles which can be culled out from the
abovenoted judgments are:
(i) The power of the Tribunal to review its order/decision
under Section 22(3)(f) of the Act is akin/analogous to the
power of a civil court under Section 114 read with Order 47
Rule 1CPC.
(ii) The Tribunal can review its decision on either of the
grounds enumerated in Order 47 Rule 1 and not otherwise.
(iii) The expression “any other sufficient reason” appearing
in Order 47 Rule 1 has to be interpreted in the light of other
specified grounds.
(iv) An error which is not self-evident and which can be
discovered by a long process of reasoning, cannot be treated as
an error apparent on the face of record justifying exercise of
power under Section 22(3)(f).
(v) An erroneous order/decision cannot be corrected in the
guise of exercise of power of review.
(vi) A decision/order cannot be reviewed under Section
22(3)(f) on the basis of subsequent decision/judgment of a
coordinate or larger Bench of the tribunal or of a superior
court.
(vii) While considering an application for review, the
tribunal must confine its adjudication with reference to
material which was available at the time of initial decision. TheSignature Not Verified
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happening of some subsequent event or development cannot be
taken note of for declaring the initial order/decision as vitiated
by an error apparent.
(viii) Mere discovery of new or important matter or
evidence is not sufficient ground for review. The party seeking
review has also to show that such matter or evidence was not
within its knowledge and even after the exercise of due
diligence, the same could not be produced before the
court/tribunal earlier.”
10. To appreciate the scope of review, it would be proper for
this Court to discuss the object and ambit of Section 114CPC as the
same is a substantive provision for review when a person
considering himself aggrieved either by a decree or by an order of
court from which appeal is allowed but no appeal is preferred or
where there is no provision for appeal against an order and decree,
may apply for review of the decree or order as the case may be in
the court, which may order or pass the decree. From the bare
reading of Section 114CPC, it appears that the said substantive
power of review under Section 114CPC has not laid down any
condition as the condition precedent in exercise of power of review
nor the said section imposed any prohibition on the court for
exercising its power to review its decision. However, an order can
be reviewed by a court only on the prescribed grounds mentioned in
Order 47 Rule 1CPC, which has been elaborately discussed
hereinabove. An application for review is more restricted than that
of an appeal and the court of review has limited jurisdiction as to
the definite limit mentioned in Order 47 Rule 1CPC itself. The
powers of review cannot be exercised as an inherent power nor can
an appellate power be exercised in the guise of power of review.”
(underline supplied)
19. Learned Single Judge of this Court, while disposing of the captioned
petition vide judgment dated 07.07.2023, had observed that eviction petition
was maintainable before the learned ARC, and respondent/tenant’s
contentions to the contrary were held untenable and were rejected.
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20. The respondent/tenant is seeking review of the said judgment dated
07.07.2023 and rectification of the aforesaid alleged error on the face of the
record with respect to the decision holding that there will be no retrospective
applicability of the Wakf Amendment Act, 2013, qua the appropriate forum.
As per the judgment of the Hon’ble Supreme Court in Shri Ram Sahu
(Dead) (supra), this Court’s review jurisdiction cannot be exercised on the
ground that the observation/opinion rendered by learned Single Judge of this
Court in judgment dated 07.07.2023 was erroneous on merits. Said decision
ought to have been assailed by the respondent/review applicant before
Hon’ble Supreme Court by taking recourse to appropriate remedy available to
him as permissible in law. The contention of the learned Senior Counsel for
the respondent that the Waqf Amendment Act, 2013, is applicable
retrospectively and the said decision ought to be corrected, as the same suffers
from an error apparent on the face of the record, in exercise of review
jurisdiction is untenable. Whether the decision of learned Single Judge is
erroneous in law or that a different view could have been taken by the Court
on the point of law will not be amenable to review jurisdiction. This Court
while exercising the power of review cannot sit in appeal over the
judgment/decision rendered by learned Single Judge of this Court.
21. Perusal of the record demonstrates that the judgments, i.e., Shiv Shakti
Coop. Housing Society v. Swaraj Developers23, and Rakesh Kesharwani v.
Imam Bada Shahedaan Karbala 24 , based on which the review of the
judgment dated 07.07.2023 has been sought, were not placed on record prior
23
(2003) 6 SCC 659
24
Manu/MP/1158/2023
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to the pronouncement of judgment under review. The said judgments are not
on record of the present petition. Moreover, even if, the said judgments were
referred to during the course of oral arguments and not considered, then same
can be a ground to challenge the same, but not for purpose of review.
22. The judgment under review dated 07.07.2023 rendered by learned
Single Judge shows that judgments of Hon’ble Supreme Court in Rashid
Wali Beg v. Farid Pindari25, and Ramesh Gobindram v. Sugra Humayun
Mirza Wakf, 26 were referred to by learned Single Judge which were relied
on the respective parties.
23. Insofar as the other judgments relied upon by the learned Senior
Counsel for the respondent/applicant are concerned, the same are
distinguishable from the present case: –
a) In Simplex Infrastructure (supra), the Hon’ble Division Bench
of this Court was dealing with a review on the ground that at the time
when the Court passed the order therein, it did not have jurisdiction to
entertain and hear the petition under Section 9 of the Arbitration and
Conciliation Act, 199627, and therefore, there was an error apparent on
the face of the record. It is an admitted position of fact, in the said case,
that as Parliament was not in session and urgent steps were needed to
be taken, therefore, Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts Ordinance, 2015, was25
(2022) 4 SCC 414
26
(2010) 8 SCC 726
27
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promulgated on 23.10.2015. In the said case, after passing of the order
under review, Section 10(2) of the Commercial Courts Act was enacted
and replaced on 31.12.2015 with retrospective effect w.e.f. 23.10.2015,
i.e., from the date on which Ordinance of 2015 pertaining to the
Commercial Courts Act was promulgated. As per enacted and replaced
Section 10(2) of the Commercial Courts Act, all applications under
Section 9 of the A&C Act are to be heard by a learned Single Judge,
i.e., Commercial Division, and not by a Division Bench, i.e., the
Commercial Appellate Division. It was in such circumstances, learned
Division Bench therein held that when the order on 10.12.2015 in the
petitioner’s application under Section 9 of the A&C Act, Division
Bench lacked jurisdiction to entertain such an application. However, in
the present case, issue of the applicability of the Waqf Amendment Act,
2013, with retrospective effect qua the appropriate forum had not been
determined/settled while the judgment under review was rendered by
learned Single Judge. It was a view taken by the learned Single Judge
which could have been challenged.
b) In Selection Committee for Admission v. MP Nagraj (supra),
the Hon’ble High Court of Mysore was dealing with the question that,
“Does overlooking a binding decision constitute a ground for
reviewing a judgment or order of a Court?” Review in said case was
sought on the ground that in the writ petition, the Court had overlooked
a binding decision of Hon’ble Supreme Court rendered prior in time to
the passing of the judgment under review, and same was not brought to
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case, there was no binding precedent/judgment passed by the Hon’ble
Supreme Court qua the retrospective effect of Waqf Amendment Act,
2013, and the relevant binding precedent prevailing then and relied on
by the parties were duly referred to by learned Single Judge in the
judgment under review.
c) In Board of Control for Cricket, India & Ors. (supra), an
undertaking was given on behalf of the Board, and learned Division
Bench before whom such undertaking was given was of the opinion
that it was misled by the same. The Hon’ble Supreme Court observed
that in a case of this nature where the High Court had accepted its own
mistake in understanding the nature and purport of the undertaking
given by the appellant-Board and its correlation with the events in the
AGM, the subsequent event may be taken into consideration by the
Court for the purpose of rectifying its own mistake. In these
circumstances, it was observed that the jurisdiction of the High Court in
entertaining a review application cannot be said to be ex facie bad in
law.
d) In M.M. Thomas v. State of Kerala (supra), the Hon’ble
Supreme Court was dealing with following questions: –
“K.T. Thomas, J.– Two questions are mooted in this appeal filed
by special leave. First is whether the power to review a decision
rendered under the Kerala Private Forests (Vesting and
Assignment) Act, 1971 (for short “the Act”) could have been
exercised in the absence of any of the conditions specified in
Section 8-C of the Act. The second question — which hasSignature Not Verified
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sprouted as ancillary to the first question — is whether the High
Court has (dehors the said provision) power to review its own
decision rendered in appeal filed under the Act. If both questions
are answered in the negative the appellant can succeed in getting
the impugned order (of a Division Bench of the High Court of
Kerala) annulled in his favour. Otherwise the impugned order will
remain undisturbed.”
While dealing with aforesaid questions, the Hon’ble Supreme
Court observed and held as under: –
“13. In this case we are not concerned with the power of review of
the Forest Tribunal. It was the High Court which reviewed its own
judgment and so the question is whether the High Court has such
power dehors Section 8-C(2) of the Act. Power of review
conferred on the Supreme Court under Article 135 of the
Constitution is not specifically made applicable to the High
Courts. Does it mean that the High Court has no power to correct
its own orders, even if the High Court is satisfied that there is
error apparent on the face of the record?
14. The High Court as a court of record, as envisaged in Article
215 of the Constitution, must have inherent powers to correct the
records. A court of record envelops all such powers whose acts
and proceedings are to be enrolled in a perpetual memorial and
testimony. A court of record is undoubtedly a superior court
which is itself competent to determine the scope of its jurisdiction.
The High Court, as a court of record, has a duty to itself to keep
all its records correctly and in accordance with law. Hence, if any
apparent error is noticed by the High Court in respect of any
orders passed by it the High Court has not only power, but a duty
to correct it. The High Court’s power in that regard is plenary.
In Naresh Shridhar Mirajkar v. State of Maharashtra [AIR 1967
SC 1 : (1966) 3 SCR 744] a nine-Judge Bench of this Court has
recognised the aforesaid superior status of the High Court as a
court of plenary jurisdiction being a court of record.”
The aforesaid proposition of law laid down by the Hon’ble
Supreme Court is not disputed; however, the power of review vested
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with this Court has to be exercised in terms of the ingredients/pre-
requisites of Section 114 and Order XLVII of the CPC and the
precedents of the Hon’ble Supreme Court providing for the
circumstances in which such power can be exercised.
e) With respect to the judgment of Hon’ble Supreme Court in
Mumtaz Yarud Dowla Waqf28 (supra), suffice it to note that the said
decision was rendered after passing of the judgment (dated 07.07.2023)
under review.
24. It is pertinent to note, at this stage, that the judgment by Two Judges’
Bench of the Hon’ble Supreme Court in Rashid Wali Beg29 (supra) did not
consider the retrospective or prospective effect of the Waqf Amendment Act,
2013. As noted hereinbefore, the issue of retrospective effect was dealt by
Two Judges’ Bench of Hon’ble Supreme Court in Mumtaz Yarud Dowla
Waqf (supra) wherein again after noting various precedents on the subject
with respect to retrospectivity as well as applicability of Waqf Amendment
Act, 2013, it was held that the said amendment is a procedural amendment
and has to be applied retrospectively. However, subsequently in Habib
Alladin (supra), regarding the effect of Waqf Amendment Act, 2013, the
Hon’ble Supreme Court was of the considered opinion that the same was by
way of substitution, and therefore, clarificatory in nature. This was, in view of
the fact that, subsequently, the learned Bench held that even after the Waqf
Amendment Act of 2013 the position in law would remain the same, which
28
2023 SCC OnLine SC 1378
29
(2022) 4 SCC 414: 2021 SCC OnLine SC 1003
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was held in Ramesh Gobindram (supra). It was held that the Amendment
Act of 2013 would only confer the jurisdiction on the Waqf Tribunal to
remove encroachers. Thus, the judgment rendered by the Two Judges’ Bench
in Habib Alladin & Ors. (supra) is, in effect, contrary to the judgments
rendered by co-equal strength of Benches in Rashid Wali Beg (supra) and
Mumtaz Yarud Dowla Waqf (supra) with respect to effect of Waqf
Amendment Act, 2013.
25. As observed by the Hon’ble Supreme Court in Shri Ram Sahu (Dead)
Through Legal Representatives And Others (supra), for a Court to
exercise the power of review on the ground of “error apparent on the face of
record”, the error must be of such a nature which “may strike one on a mere
looking at the record and would not require any long-drawn process of
reasoning”. In the present case, the effect of the Waqf Amendment (Act No.
27), 2013, whether retrospective or prospective qua the appropriate forum
was not determined or pronounced by way of a definite judicial precedent
when the judgment under review was passed by learned Single Judge of this
Court on 07.07.2023. Subsequent to the passing of said decision, as noted
hereinbefore, Two Judges’ Bench of Hon’ble Supreme Court in Habib
Alladin & Ors. (supra) has given a contrary opinion to the judgments
rendered by co-equal strength of Benches in Rashid Wali Beg (supra) and
Mumtaz Yarud Dowla Waqf (supra) with respect to effect of Waqf
Amendment Act, 2013. Thus, the opinion of learned Single Judge in judgment
under review that the Waqf Amendment Act, 2013, was prospective and such
Amendment does not make Section 83 of the Waqf Act applicable
retrospectively, cannot be said to be a self-evident error apparent on the face
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of the record. The same has been attempted to be established by learned
Senior Counsel for the respondent/applicant by relying on various judicial
precedents. This requires judicial interpretation and would, as such, amount to
this Court exercising appellate jurisdiction over the judgment under review
rendered by learned Single Judge. Such an exercise is not permissible in the
present review jurisdiction.
26. In view of the aforesaid, in the considered opinion of this Court, no
grounds for review of judgment dated 07.07.2023 are made out.
27. The present review petition is accordingly dismissed and disposed of.
28. The order dated 08.01.2024 passed by learned Predecessor Bench with
respect to non-initiation of the execution proceedings/petition stands vacated.
Petitioner will be at liberty to initiate appropriate execution proceedings in
accordance with law.
29. Insofar as the interim order dated 15.01.2026, as amended on
06.02.2026, directing the respondent to pay a sum of Rs.50,000/- per month,
as an ad-interim measure, to the petitioner/landlord from 08.01.2024 is
concerned, the respondent shall pay the said amount to the petitioner till
today, i.e., 03.08.2026, along with arrears, if any. Further proceedings
regarding the payment of use and occupation charges can be dealt with by the
concerned learned Execution Court in accordance with law.
30. In view of the aforesaid, application, CM APPL. 35407/2025, filed on
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behalf of the petitioner/applicant for payment of use and occupation charges
at the market rate for the demised premises, stands disposed of.
31. Pending applications, if any, also stand disposed of accordingly.
32. Judgment be uploaded on the website of this Court, forthwith.
AMIT SHARMA
(JUDGE)
AUGUST 03, 2026/nk/bsr/ns
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