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bharat kothari   23 August 2022

civil procedure code

Seek opinion in below facts. Landlord file eviction suit and got decree on 21st October 2005 on the ground of bonafide requirement and subletting therefore tenant filed appeal however during the pendency of appeal a third party contending that landlord has executed development agreement and power of attorney on 21st April 2005 and their by given him power to deal with all tenants and to sort out matters amicabley has filled separate evictions suit in which landlord has also made an application to be joined as a party defendant but his application got dismissed for default and ultimately tenant and power of attorney of the landlord filed consent term which were not challenged by landlord. The tenant there after carryout amendment in the appeal memo that in view of the consent term filed between Power of attorney of the landlord and tenant, the landlord has given up right occurred to him under the decree and therefore nothing remains in the appeal. The amendment was allowed being the subsequent event and accordingly tenant filed application for additional evidence to put on record power of attorney and the consent term under order 41 rule 27 of CPC and Court has allowed the application and assured to consider the same along with the final appeal however the court inadvertently court has not considered the said documents and has not given any finding on the subsequent issue that is consequences of consent decree between the parties in respect of the same premises in context of doctrine of estoppel and according appeal was dismissed and therefore tenant has filed review on this limited issue however though the court observed that there is miscarriage of justice but having limited power under review jurisdiction has dismissed the application. Now we have to challenge review order and also appeal on other issues which were pending before lower court what will be the remedy in the High Court (1) CRA or writ. (2) how the limitation period will be calculated because appeal was dismissed on 21st August 2021 and review was decided on 29th July 2022.


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