Himachal Pradesh High Court
Bimal Kumar vs Sajogita Devi & Others on 17 September, 2024
Neutral Citation No. ( 2024:HHC:8659 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Review Petition No. 81 of 2024
.
Reserved on: 23.08.2024
Date of Decision: 17.09.2024.
Bimal Kumar ...Petitioner
Versus
Sajogita Devi & others
Coram
r to ...Respondents
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Ms. Varsha Raina, Advocate.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking review of the order passed by this Court in CMPMO
No.186 of 2022, decided on 10.06.2024, vide which the petition
filed under Article 227 of the Constitution of India against the
order dated 27.04.2022 passed by learned District Judge, Kangra
at Dharamshala was ordered to be dismissed.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2024:HHC:8659 )
2. Briefly stated, the facts giving rise to the present
petition are that the plaintiff filed a civil suit against the
.
defendants before the learned Trial Court for seeking a
permanent prohibitory injunction restraining the defendants
from interfering in the suit land mentioned in para 2 of the
judgment. He also filed an application under Order 39 Rules 1 and
2 of CPC, which was dismissed by the learned Trial Court. The
petitioner filed an appeal before the learned District Judge who
dismissed it. The petitioner approached this Court by filing a
petition under Article 227 of the Constitution of India and this
Court also dismissed the petition after holding that the parties
were recorded to be co-owners of the suit land and a co-owner
cannot restrain the other co-owner from raising construction
over the joint land unless prejudice is shown to the co-owner
seeking the injunction. Mere raising of the construction does not
amount to any prejudice and learned Courts below had rightly
dismissed the application seeking an ad-interim injunction.
3. The petitioner filed the present review petition
asserting that this Court had wrongly mentioned the date of the
judgment and decree as 19.01.2023 whereas the same should have
been 19.01.2013. The earlier judgment and decree suffered from
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Neutral Citation No. ( 2024:HHC:8659 )
the defect of jurisdiction because the court had held that it had
no jurisdiction to hear and entertain the suit. The findings
.
recorded in the previous suit will not constitute a res judicata. The
proceedings were conducted before the Revenue Court and the
learned Financial Commissioner passed an order dated 17.10.2015
setting aside the order passed by learned Sub Divisional
Collector, Baijnath dated 28.05.2008. The order of learned AC
First Grade effected the mutation entry number 428. This entry is
wrong, illegal and liable to be cancelled. The plaintiff’s previous
suit was dismissed and does not create any right in favour of the
defendants. The defendants wrongly used the order and
judgment of the learned Trial Court dated 19.01.2013, which was
passed without jurisdiction. The defendants ignored the order
passed by the learned Financial Commissioner, which is valid
and constitutes res judicata during the present proceedings. The
Court had referred to the partition effected by the Kannungo in
the presence of the petitioner on 26.05.2018. There was no free
consent for the partition. The defendants made a complaint to
SDM Baijnath regarding the plaintiff encroaching upon the
government land. The field Kannungo visited the spot on
26.05.2018 and declared that demarcation and partition of
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Neutral Citation No. ( 2024:HHC:8659 )
private land had taken place between the parties. The defendants
stated on 08.06.2018 that they wanted a family partition but they
.
had no locus standi to demand the family partition. The
proceedings were not properly conducted by the revenue
authorities. The order of the learned Financial Commissioner
could not have been ignored. The Court can take note of the
subsequent proceedings while deciding the review petition. This
Court had relied upon the findings recorded by the learned First
Appellate Court that parties were co-owners in possession. The
learned Appellate Court had observed that the plaintiff had
denied the existence of family partition in para 12. This Court had
wrongly perpetuated the status of co-ownership which is
contrary to the plea taken by the plaintiff in para 3 of the plaint.
The defendants are strangers and not the co-owners. They have
suppressed the material facts from the Court. The entries in the
jamabandi have no effect. Therefore, it was prayed that the
present petition be allowed and the relief of injunction be
granted to the plaintiff.
4. I have heard Ms. Varsha Raina, learned counsel for the
petitioner, who reiterated the pleas taken in the petition and
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Neutral Citation No. ( 2024:HHC:8659 )
prayed that the present petition be allowed and the order passed
by this Court be reviewed.
.
5. I have given considerable thought to the submissions
made at the bar and have carefully gone through the records
carefully.
6. Order 47 Rule 1 of CPC deals with an application for
review. It reads as under:
“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 notbe 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
of 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 to the
Court which passed the decree or made the order.
(2) A party who is not appealing from a decree on order
may apply for a review of judgment notwithstanding the
pendency of an appeal by some other party except where::: Downloaded on – 17/09/2024 20:32:38 :::CIS
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Neutral Citation No. ( 2024:HHC:8659 )the ground of such appeal is common to the applicant and
the appellant, or when, being respondent, he can present
to the Appellate Court the case on which he applies for the
review.
.
Explanation–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.”
7. It is apparent from the bare perusal of this Section
that the power of review can be exercised on the discovery of new
and important matter, mistake or error apparent on the face of
the record or for any other sufficient reason. It was laid down by
the Hon’ble Supreme Court in S. Madhusudhan Reddy v. V.
Narayana Reddy, 2022 SCC OnLine SC 1034:(2022) 12 SCALE 261:
(2022) 4 CivCC 464 : (2022) 4 RCR(Civil) 36 that the Court cannot
review an order unless it is satisfied that there is a material error
manifest on the face of the record, which would result in the
miscarriage of justice. It was observed:
“18. A glance at the aforesaid provisions makes it clear that
a review application would be maintainable on (i)
discovery of new and important matters or evidence
which, after exercise of due diligence, were not within the
knowledge of the applicant or could not be produced by
him when the decree was passed or the order made; (ii) on
account of some mistake or error apparent on the face of
the record; or (iii) for any other sufficient reason.
19. In Col. Avatar Singh Sekhon v. Union of India and Others,
1980 Supp SCC 562 this Court observed that a review of an::: Downloaded on – 17/09/2024 20:32:38 :::CIS
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Neutral Citation No. ( 2024:HHC:8659 )earlier order cannot be done unless the court is satisfied
that the material error which is manifest on the face of the
order, would result in a miscarriage of justice or
undermine its soundness. The observations made are as.
under:
’12. A review is not a routine procedure. Here we
resolved to hear Shri Kapil at length to removeany feeling that the party has been hurt without
being heard. But we cannot review our earlier
order unless satisfied that material error,
manifest on the face of the order, undermines itssoundness or results in a miscarriage of justice. In
Sow Chandra Kante and Another v. Sheikh Habib,
(1975) 1 SCC 674 this Court observed:
r ‘A review of a judgment is a serious step and
reluctant resort to it is proper only where aglaring omission or patent mistake or like
grave error has crept in earlier by judicial
fallibility. The present stage is not a virginground but a review of an earlier order which
has the normal feature of finality.’ (emphasis
added)
20. In Parsion Devi and Others v. Sumitri Devi and Others,
(1997) 8 SCC 715 stating that an error that is not self-
evident and one that has to be detected by the process of
reasoning, cannot be described as an error apparent on the
face of the record for the Court to exercise the powers of
review, this Court held as under:
‘7. It is well settled that review proceedings have
to be strictly confined to the ambit and scope of
Order 47 Rule 1 CPC. In Thungabhadra Industries
Ltd. v. Govt. of A.P., 1964 SCR (5) 174 this Court
opined:
’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::: Downloaded on – 17/09/2024 20:32:38 :::CIS
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Neutral Citation No. ( 2024:HHC:8659 )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 ‘errorapparent 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 whichcould be characterized 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, (1995) 1 SCC 170 while quoting with
approval a passage from 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 1 CPC.
9. Under Order 47 Rule 1 CPC 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 1
CPC. In exercise of this jurisdiction under Order 47
rule 1 CPC 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 added]
21. The error referred to under the Rule, must be apparent
on the face of the record and not one which has to be
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Neutral Citation No. ( 2024:HHC:8659 )
searched out. While discussing the scope and ambit of
Article 137 that empowers the Supreme Court to review its
judgments and in the course of discussing the contours of
review jurisdiction under Order XLVII Rule 1 of the CPC in
.
Lily Thomas (supra), this Court held as under:
’54. Article 137 empowers this court to review its
judgments subject to the provisions of any lawmade by Parliament or any rules made under
Article 145 of the Constitution. The Supreme Court
Rules made in the exercise of the powers under
Article 145 of the Constitution prescribe that incivil cases, review lies on any of the grounds
specified in Order 47 Rule 1 of the Code of Civil
Procedure which provides:
r ‘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, fromthe discovery of new and important
matter or evidence which, after the
exercise of due diligence was not withinhis 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 to the Court which
passed the decree or made the order.’::: Downloaded on – 17/09/2024 20:32:38 :::CIS
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Neutral Citation No. ( 2024:HHC:8659 )Under Order XL Rule 1 of the Supreme Court Rules,
no review lies except on the ground of error
apparent on the face of the record in criminal
cases. Order XL Rule 5 of the Supreme Court Rules.
provides that after an application for review has
been disposed of no further application shall be
entertained in the same matter.
XXX XXX XXX
56. It follows, therefore, that the power of review can
be exercised for the 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. The mere possibility of two
views on the subject is not a ground for review. Once
a review petition is dismissed no further petition of
review can be entertained. The rule of law of
following the practice of the binding nature of the
larger Benches and not taking different views by
the Benches of coordinated jurisdiction of equal
strength has to be followed and practised.
However, this Court in the exercise of its powers
under Article 136 or Article 32 of the Constitution
and upon satisfaction that the earlier judgments
have resulted in the deprivation of fundamental
rights of a citizen or rights created under any
other statute, can take a different view
notwithstanding the earlier judgment.
XXX XXX XXX
58. Otherwise also no ground as envisaged under
Order XL of the Supreme Court Rules read with
Order 47 of the Code of Civil Procedure has been
pleaded in the review petition or canvassed before
us during the arguments for the purposes of
reviewing the judgment in Sarla Mudgal case
[(1995) 3 SCC 635, Sarla Mudgal, President, Kalyani
and Others v. Union of India and Others]. It is not
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Neutral Citation No. ( 2024:HHC:8659 )
the case of the petitioners that they have
discovered any new and important matter which
after the exercise of due diligence was not within
their knowledge or could not be brought to the
.
notice of the Court at the time of passing of the
judgment. All pleas raised before us were in fact
addressed for and on behalf of the petitioners
before the Bench which, after considering those
pleas, passed the judgment in Sarla Mudgal(supra)
case. We have also not found any mistake or error
apparent on the face of the record requiring a
review. Error contemplated under the rule must be
such which is apparent on the face of the record and
not an error which has to be fished out and searched.
It must be an error of inadvertence. No such error
has been pointed out by the learned counsel
appearing for the parties seeking review of the
judgment. The only arguments advanced were
that the judgment interpreting Section 494
amounted to a violation of some of the
fundamental rights. No other sufficient cause has
been shown for reviewing the judgment. The
words “any-other sufficient reason appearing in
Order 47 Rule 1 CPC” must mean “a reason sufficient
on grounds at least analogous to those specified in
the rule” as was held in Chajju Ram v. Neki Ram, AIR
1922 PC 112 and approved by this Court in Moran
Mar Basselios Catholicos. v. Most Rev. Mar Poulose
Athanasius, 1955 SCR 520 Error apparent on the face
of the proceedings is an error which is based on clear
ignorance or disregard of the provisions of law. In
T.C. Basappa v. T. Nagappa, 1955 SCR 250 this Court
held that such error is an error which is a patent error
and not a mere wrong decision. In Hari Vishnu
Kamath v. Ahmad, AIR 1955 SC 233 it was held:
‘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 the record. The::: Downloaded on – 17/09/2024 20:32:38 :::CIS
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Neutral Citation No. ( 2024:HHC:8659 )real difficulty with reference to this matter,
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 a mere error and become an error
apparent on the face of the record? Learned
Counsel on either side were unable to suggestany clear-cut rule by which the boundary
between the two classes of errors could be
demarcated.
Mr Pathak for the first respondent contended
on the strength of certain observations of Chagla,
CJ in ‘Batuk K Vyas v. Surat Borough Municipality’,
ILR 1953 Bom 191 that no error could be said to be
apparent on the face of the record if it was notself-evident and if it required an examination or
argument to establish it. This test might afford a
satisfactory basis for decision in the majority of
cases. But there must be cases in which even this
test might break down, because judicial opinionsalso differ, and an error that might be considered
by one Judge as self-evident might not be so
considered by another. The fact is that what is anerror apparent on the face of the record cannot be
defined precisely or exhaustively, there being anelement of indefiniteness inherent in its very nature,
and it must be left to be determined judicially on thefacts of each case.
Therefore, it can safely be held that the petitioners
have not made out any case within the meaning of
Article 137 read with Order XL of the Supreme
Court Rules and Order 47 Rule 1 CPC for reviewing
the judgment in the Sarla Mudgal case(supra). The
petition is misconceived and bereft of any
substance.’ (emphasis added)
21. It is also settled law that in the exercise of review
jurisdiction, the Court cannot reappreciate the evidence to::: Downloaded on – 17/09/2024 20:32:38 :::CIS
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Neutral Citation No. ( 2024:HHC:8659 )arrive at a different conclusion even if two views are
possible in a matter.”
8. It was laid down in Arun Dev Upadhyaya v. Integrated
.
Sales Service Ltd., 2023 SCC OnLine SC 779 that the power of review
can be exercised on the satisfaction of the conditions laid down
in Order 47. Where a review is sought on the ground of error
apparent on the face of the record, the error should be visible and
not the one which is to be detected by the process of reasoning. It
was observed:
“9. A plain reading of the above provisions in uncertain
terms states that the power to review can be exercised only
upon the existence of any of the three conditions
expressed therein. ‘A mistake or an error apparent on theface of the record’ is one of the conditions. It is only on this
ground that review has been preferred. The above phrase
has been consistently interpreted by authoritativepronouncement of this Court for decades. A three-judge
Bench of this Court comprising of Hon’ble Sri S.R. Das, C.J.,M. Hidayatullah and Sri K.C. Das Gupta, J.J. in the case of
Satyanarayan Laxminarayan Hegde and others Vs.
Millikarjun Bhavanappa Tirumale AIR 1960 SC 137,discussed the scope of the phrase ‘error apparent on the
face of the record’. The challenge before this Court in the
said case was the judgment of the High Court on the
grounds whether it suffers from an error apparent on the
face of the record. The High Court had issued a writ of
certiorari and had quashed the order of the Tribunal and
restored that of the Mamlatdar. In paragraph 8 of the
report, the issue which was to be considered is reflected.
The same is reproduced hereunder:
“8. The main question that arises for our
consideration in this appeal by special leave granted by::: Downloaded on – 17/09/2024 20:32:38 :::CIS
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Neutral Citation No. ( 2024:HHC:8659 )this Court is whether there is any error apparent on the
face of the record so as to enable the superior court to
call for the records and quash the order by a writ of
certiorari or whether the error, if any, was “a mere.
error not so apparent on the face of the record”, which
can only be corrected by an appeal if an appeal lies at
all.”
10. After discussing the relevant material on record, the
conclusion is stated in paragraph 17 of the report. The view
was that where 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. The view that a
long-drawn process of arguments to canvass a point
attacking the order in a review jurisdiction, cannot be said
to be an error apparent on the face of record. The relevant
extract from paragraph 17 of the report is reproduced
hereunder:
“17……………….. Is the conclusion wrong and if so, is
such error apparent on the face of the record? If it is
clear that the error if any is not apparent on the face of
the record, it is not necessary for us to decide whetherthe conclusion of the Bombay High Court on the
question of notice is correct or not. An error, which hasto 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 ofthe record. As the above discussion of the rival
contentions shows the alleged error in the present case
is far from self-evident and if it can be established, it
has to be established by lengthy and complicated
arguments. We do not think such an error can be cured
by a writ of certiorari according to the rule governing
the powers of the superior court to issue such a writ. In
our opinion, the High Court was wrong in thinking that
the alleged error in the judgment of the Bombay
Revenue Tribunal, viz., that an order for possession
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Neutral Citation No. ( 2024:HHC:8659 )given was an error apparent on the face of the record so
as to be capable of being corrected by a writ of
certiorari.”
.
11. Another case, which may be briefly dealt with is the case
of Parison Devi Vs. Sumitri Devi[(1997) 8 SCC 715], where,
this Court ruled that under Order XLVII Rule 1 CPC, 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. It also observed that a review
petition cannot be allowed to be treated as an appeal in
disguise.
12. A series of decisions may also be referred to herein, it
has been held that power to review may not be exercised
on the ground that the decision was erroneous on merits as
the same would be the domain of the Court of Appeal.
Power of review should not be confused with appellate
powers as the appellate power can correct all manners of
errors committed by the subordinate courts. The following
judgments may be referred to:
(1) Shivdeo Singh Vs. State of Punjab; AIR 1963 SC 1909
(2) Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma;
AIR 1979 SC 1047
(3) Meera Bhanja (Smt.) Vs. Nirmala Kumari Choudhary(Smt.); (1995) 1 SCC 170.
(4) Uma Nath Pandey Vs. State of U.P.; (2009) 12 SCC 40
13. Recently, this Court in a judgment dated 24th February
2023 passed in Civil Appeal No.1167- 1170 of 2023 between S.
Murali Sundaram Vs. Jothibai Kannan and Others observed
that even though a judgment sought to be reviewed is
erroneous, the same cannot be a ground to review in the
exercise of powers under Order XLVII Rule 1 CPC. Further,
in the case of Perry Kansagra Vs. Smriti Madan
Kansagra[(2019) 20 SCC 753], this Court observed that
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Neutral Citation No. ( 2024:HHC:8659 )
while exercising the review jurisdiction in an application
under Order XLVII Rule 1 read with Section 114 CPC, the
Review Court does not sit in appeal over its own order.
.
14. In another case between Shanti Conductors (P) Ltd. Vs.
Assam SEB, (2020) 2 SCC 677 this Court observed that the
scope of review under Order XLVII Rule 1 read with Section
114 CPC is limited and under the guise of review, the
petitioner cannot be permitted to reagitate and reargue
questions which have already been addressed and decided.
It was further observed that 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.
15. From the above, it is evident that a power to review
cannot be exercised as an appellate power and has to be
strictly confined to the scope and ambit of Order XLVII
Rule 1 CPC. An error on the face of record must be such an
error which, mere looking at the record should strike and it
should not require any long-drawn process of reasoning
on the points where there may conceivably be two
opinions”
9. It was held in S. Murali Sundaram v. Jothibai Kannan,
2023 SCC OnLine SC 185 that the power of review is not equivalent
to an appellate power. The Court cannot sit in appeal while
considering the review application. It was observed:
“15 While considering the aforesaid issue two decisions of
this Court on Order 47 Rule 1 read with Section 114 CPC are
required to be referred to? In the case of Perry Kansagra
(supra) this Court has observed that while exercising the
review jurisdiction in an application under Order 47 Rule 1
read with Section 114 CPC, the Review Court does not sit in
appeal over its own order. It is observed that a rehearing of
the matter is impermissible in law. It is further observed
that the review is not an appeal in disguise. It is observed::: Downloaded on – 17/09/2024 20:32:38 :::CIS
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Neutral Citation No. ( 2024:HHC:8659 )that the power of review can be exercised for the
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.
that it is wholly unjustified and exhibits a tendency to
rewrite a judgment by which the controversy has been
finally decided. After considering the catena of decisions
on the exercise of review powers and principles relating to
the exercise of review jurisdiction under Order 47
Rule 1 CPC this Court had summed upon as under:
‘(i) Review proceedings are not by way of appeal and
have to be strictly confined to the scope and ambit of
Order 47 Rule 1 CPC.
(ii) Power of review may be exercised when some
mistake or error apparent on the fact of record is
rfound. But an error on the face of record must besuch an error which must strike one on merely look-
ing at the record and would not require any long-
drawn process of reasoning on the points where
there may conceivably by two opinions.
(iii) Power of review may not be exercised on the
ground that the decision was erroneous on merits.
(iv) Power of review can also be exercised for any
sufficient reason which is wide enough to include a
misconception of fact or law by a court or even an
advocate.
(v) An application for review may be necessitated by
way of invoking the doctrine actus curiae neminem
gravabit.’
16. It is further observed in the said decision that an error
which is required to be detected by a process of reasoning
can hardly be said to be an error on the face of the record.
17. In the case of Shanti Conductors (P) Ltd. (supra), it is
observed and held that the scope of review under Order 47
Rule 1 CPC read with Section 114 CPC is limited and under
the guise of review, the petitioner cannot be permitted to
reagitate and reargue questions which have already been
addressed and decided. It is further observed that an error
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Neutral Citation No. ( 2024:HHC:8659 )
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 record justifying the court to
exercise its power of review under Order 47 Rule 1 CPC.
.
18 Applying the law laid down by this Court in the aforesaid
two decisions to the facts of the case on hand, we are of the
opinion that in the present case while allowing the review
application and setting aside the judgment and order dated
03.03.2017 passed in Writ Petition No.8606 of 2010 the
High Court has exceeded in its jurisdiction and has
exercised the jurisdiction not vested in it while exercising
the review jurisdiction under Order 47 Rule 1 read with
Section 114 CPC. From the reasoning given by the High
Court, it appears that according to the High Court, the
judgment and order passed in Writ Petition No.8606 of
2010 was erroneous. While passing the impugned
judgment and order the High Court has observed and
considered the Survey Report dated 12.12.2007 which was
already dealt with by the High Court while deciding the
main writ petition and the High Court discarded and/or not
considered the Survey Report dated 12.12.2007. Once the
Survey Report dated 12.12.2007 fell for consideration
before the High Court while deciding the main writ
petition thereafter the same could not have been
considered again by the High Court while deciding the
review application.
19 From the impugned judgment and order passed by the
High Court it appears that the High Court has decided the
review application as if the High Court was exercising the
appellate jurisdiction against the judgment and order
dated 03.03.2017 passed in Writ Petition (MD) No.8606 of
2010 which is wholly impermissible while considering the
review application under Order 47 Rule 1 read with Section
114 CPC.
20. From the impugned judgment and order passed by the
High Court allowing the review application it is observed in
paragraph 33 as under:
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Neutral Citation No. ( 2024:HHC:8659 )
’33. The above legal principles were born in mind by
this Court while considering the review application.
Brushing aside a survey report, which was available
on record and which brought out tampering of.
official records, ought to have been taken note of by
the Learned Writ Court while considering the prayer
sought for in the Writ Petition. This has led to anerror, which is manifest on the face of the order.
Furthermore, the Court proceeded on the basis that
S.M. Gajendran had executed a gift deed without
noting the fact that the gift deed was a document,which was unilaterally executed by him, not
accepted by the respondent Corporation and could
not have been treated to be a valid gift. These facts
have emerged on the fact of the order passed in theWrit Petition without any requirement for long-
drawn reasoning. Therefore, we are fully satisfied
that we are justified in exercising our review
jurisdiction. For the above reasons, we are of the
clear view that the order passed in the Writ petitionsuffers from error apparent on the fact of the records
warranting exercise of review jurisdiction.’
21. From the aforesaid it appears that the High Court has
considered the review application as if it was an appeal
against the order passed by the High Court in Writ Petition
No.8606 of 2010. As observed hereinabove the same is
wholly impermissible while deciding the review
application. Even if the judgment sought to be reviewed is
erroneous the same cannot be a ground to review the same
in the exercise of powers under Order 47 Rule 1 CPC. An
erroneous order may be subjected to appeal before the
higher forum but cannot be a subject matter of review
under Order 47 Rule 1 CPC.”
10. Similar is the judgment in Pancham Lal Pandey v.
Neeraj Kumar Mishra, 2023 SCC OnLine SC 143 = AIR 2023 SC 948,
wherein, it was held:
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Neutral Citation No. ( 2024:HHC:8659 )
“14. The provision of review is not to scrutinize the
correctness of the decision rendered but rather to correct
the error, if any, which is visible on the face of the
order/record without going into as to whether there is a.
possibility of another opinion different from the one
expressed.
15. The Division Bench in allowing the review
petition has dealt with the matter as it is seized of
the special appeal itself and has virtually reversed
the decision by taking a completely new stand for
the payment of salary to teachers subject-wise. It
amounts to rehearing and rewriting the judgment
in appeal without there being any error apparent
on the face in the earlier order. The Division
Bench thus clearly exceeded its review jurisdiction
in passing the impugned order.” to impress us
that the correspondence exchanged between the
parties did not support the conclusion reached by
this Court. We are afraid such a submission cannot
be permitted to be advanced in a review petition.
The appreciation of evidence on record is fully within
the domain of the appellate court. If on appreciation
of the evidence produced, the court records a finding
of fact and reaches a conclusion, that conclusion
cannot be assailed in a review petition unless it is
shown that there is an error apparent on the face of
the record or for some reason akin thereto. It has not
been contended before us that there is any error
apparent on the face of the record. To permit the
review petitioner to argue on a question of
appreciation of evidence would amount to converting
a review petition into an appeal in disguise.”
(emphasis added)
23. Under the garb of filing a review petition, a party
cannot be permitted to repeat old and overruled arguments
for reopening the conclusions arrived at in a judgment.
The power of review is not to be confused with the
appellate power which enables the Superior Court to
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Neutral Citation No. ( 2024:HHC:8659 )
correct errors committed by a subordinate Court. This
point has been elucidated in Jain Studios Ltd. V. Shin
Satellite Public Co. Ltd., (2006) 5 SCC 501 where it was held
thus:
.
’11. So far as the grievance of the applicant on
merits is concerned, the learned counsel for the
opponent is right in submitting that virtually theapplicant seeks the same relief which had been
sought at the time of arguing the main matter and
had been negatived. Once such a prayer had been
refused, no review petition would lie which wouldconvert rehearing of the original matter. It is
settled law that the power of review cannot be
confused with appellate power which enables a
superior court to correct all errors committed by asubordinate court. It is not a rehearing of an original
matter. A repetition of old and overruled arguments
is not enough to reopen concluded adjudications. The
power of review can be exercised with extreme care,
caution and circumspection and only in exceptionalcases.
12. When a prayer to appoint an arbitrator by the
applicant herein had been made at the time when
the arbitration petition was heard and wasrejected, the same relief cannot be sought by an
indirect method by filing a review petition. Such
petition, in my opinion, is in the nature of ‘secondinnings’ which is impermissible and unwarranted
and cannot be granted.’ (emphasis added)
24. After discussing a series of decisions on review
jurisdiction in Kamlesh Verma v. Mayawati and Others,
(2013) 8 SCC 320 this Court observed that review
proceedings have to be strictly confined to the scope and
ambit of Order XLVII Rule 1, CPC. As long as the point
sought to be raised in the review application has already
been dealt with and answered, parties are not entitled to
challenge the impugned judgment only because an
alternative view is possible. The principles for exercising
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Neutral Citation No. ( 2024:HHC:8659 )
review jurisdiction were succinctly summarized in the
captioned case as below:
’20. Thus, in view of the above, the following
.
grounds of review are maintainable as stipulated
by the statute:
20.1. When the review will be maintainable:
(i) Discovery of new and important
matter or evidence which, after the
exercise of due diligence, was not
within the knowledge of thepetitioner or could not be produced by
him;
(ii) Mistake or error apparent on the
face of the record;
(iii) Any other sufficient reason.
The words “any other sufficient reason” has
been interpreted in Chajju Ram vs.
Neki(supra), and approved by this Court in
Moran Mar Basselios Catholicos vs. Most Rev.
Mar Poulose Athanasius & Ors. (supra) to
mean “a reason sufficient on grounds at
least analogous to those specified in the
rule”. The same principles have been
reiterated in Union of India v. Sandur
Manganese & Iron Ores Ltd. & Ors., (2013) 8
SCC 337.
20.2. When the review will not be
maintainable: –
(i) A repetition of old and overruled
arguments is not enough to reopen
concluded adjudications.
(ii) Minor mistakes of inconsequential
import.
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Neutral Citation No. ( 2024:HHC:8659 )
(iii) Review proceedings cannot be
equated with the original hearing of
the case.
.
(iv) Review is not maintainable unless
the material error, manifest on the
face of the order, undermines its
soundness or results in a miscarriage
of justice.
(v) A review is by no means an appeal
in disguise whereby an erroneous
decision is re-heard and corrected but
lies only for patent error.
(vi) The mere possibility of two views
on the subject cannot be a ground for
r review.
(vii) The error apparent on the face of
the record should not be an error
which has to be fished out and
searched.
(viii) The appreciation of evidence on
record is fully within the domain of
the appellate court, it cannot be
permitted to be advanced in the
review petition.
(ix) Review is not maintainable when
the same relief sought at the time of
arguing the main matter had been
negatived.’
25. In Aribam Tuleshwar Sharma v. Aribam Pishak
Sharma(supra), this Court was examining an order passed
by the Judicial Commissioner who was reviewing an earlier
judgment that went in favour of the appellant, while
deciding a review application filed by the respondents
therein who took a ground that the predecessor Court had
overlooked two important documents that showed that the
respondents were in possession of the sites through which
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Neutral Citation No. ( 2024:HHC:8659 )
the appellant had sought easementary rights to access his
homestead. The said appeal was allowed by this Court with
the following observations:
.
‘3 -It is true as observed by this Court in Shivdeo
Singh and Others v. State of Punjab, (1979) 4 SCC
389 there is nothing in Article 226 of the
Constitution to preclude a High Court fromexercising 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 aredefinitive 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 notwithin 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 anyanalogous 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
power which may enable an appellate court to correct
all manner of errors committed by the subordinate
court.’ (emphasis added)
26. In State of West Bengal and Others v. Kamal Sengupta
and Another, (2008) 8 SCC 612 this Court emphasized the
requirement of the review petitioner who approaches a
Court on the ground of discovery of a new matter or
evidence, to demonstrate that the same was not within his
knowledge and held thus:
’21. At this stage, it is apposite to observe that
where a review is sought on the ground of
discovery of new matter or evidence, such matter
or evidence must be relevant and must be of such a
character that if the same had been produced, it::: Downloaded on – 17/09/2024 20:32:38 :::CIS
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Neutral Citation No. ( 2024:HHC:8659 )might have altered the judgment. In other words,
the mere discovery of new or important matter or
evidence is not sufficient ground for review ex debito
justitiae. Not only this, the party seeking review has.
also to show that such additional matter or evidence
was not within its knowledge and even after the
exercise of due diligence, the same could not beproduced before the court earlier.’ (emphasis added)
27. In the captioned judgment, the term ‘mistake or error
apparent’ has been discussed in the following words:
’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
r of the facts or the legal position. If an error is not
self-evident and detection thereof requires longdebate 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 1 CPC orSection 22(3) (f) of the Act. To put it differently, an
order decision or judgment cannot be corrected
merely because it is erroneous in law or on theground that a different view could have been taken
by the court/tribunal on a point of fact or law. In anycase, while exercising the power of review, the
court/tribunal concerned cannot sit in appeal over its
judgment/decision’. (emphasis added)
28. In S. Nagaraj and Others v. State of Karnataka and
Another, 1993 Supp (4) SCC 595 this Court explained as to
when a review jurisdiction could be treated as statutory or
inherent and held thus :
’18. Justice is a virtue, which transcends all
barriers. Neither the rules of procedure nor
technicalities of law can stand in its way. The
order of the court should not be prejudicial to
anyone. The rule of stare decisis is adhered to for
consistency but it is not as inflexible in::: Downloaded on – 17/09/2024 20:32:38 :::CIS
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Neutral Citation No. ( 2024:HHC:8659 )Administrative Law as in Public Law. Even the law
bends before justice. The entire concept of writ
jurisdiction exercised by the higher courts is founded
on equity and fairness. If the court finds that the.
order was passed under a mistake and it would not
have exercised the jurisdiction but for the erroneous
assumption which in fact did not exist and itsperpetration shall result in miscarriage of justice then
it cannot on any principle be precluded from
rectifying the error. The mistake is accepted as a valid
reason to recall an order. The difference lies in thenature of the mistake and the scope of rectification,
depending on if it is of fact or law. But the root from
which the power flows is the anxiety to avoid
injustice. It is either statutory or inherent. The latter
r is available where the mistake is of the Court’.
(emphasis added)
29. In Patel Narshi Thakershi and Others v. Shri Pradyuman
Singhji Arjunsinghji, (1971) 3 SCC 844 this Court held as
follows:
‘4.. It is well settled that the power to review is not an
inherent power. It must be conferred by law eitherspecifically or by necessary implication. No
provision in the Act was brought to notice fromwhich it could be gathered that the Government
had the power to review its own order. If the
Government had no power to review its own order,it is obvious that its delegate could not have
reviewed its order.’ (emphasis added)
30. In Ram Sahu (Dead) Through LRs and Others v. Vinod
Kumar Rawat and Others, (2020) SCC Online SC 896 citing
previous decisions and expounding on the scope and ambit
of Section 114 read with Order XLVII Rule 1, this Court has
observed that Section 114 CPC does not lay any conditions
precedent for exercising the power of review; and nor does
the Section prohibit the Court from exercising its power to
review a decision. However, an order can be reviewed by
the Court only on the grounds prescribed in Order XLVII
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Neutral Citation No. ( 2024:HHC:8659 )
Rule 1 CPC. The said power cannot be exercised as an
inherent power and nor can appellate power be exercised
in the guise of exercising the power of review.
.
26. As can be seen from the above exposition of law, it has
been consistently held by this Court in several judicial
pronouncements that the Court’s jurisdiction of review, is
not the same as that of an appeal. A judgment can be open
to review if there is a mistake or an error apparent on the
face of the record, but an error that has to be detected by a
process of reasoning, cannot be described as an error
apparent on the face of the record for the Court to exercise
its powers of review under Order XLVII Rule1 CPC. In the
guise of exercising powers of review, the Court can correct
a mistake but not substitute the view taken earlier merely
because there is a possibility of taking two views in a
matter. A judgment may also be open to review when any
new or important matter of evidence has emerged after
passing of the judgment, subject to the condition that such
evidence was not within the knowledge of the party
seeking review or could not be produced by it when the
order was made despite undertaking an exercise of due
diligence. There is a clear distinction between an
erroneous decision as against an error apparent on the face
of the record. An erroneous decision can be corrected by
the Superior Court, however, an error apparent on the face
of the record can only be corrected by exercising review
jurisdiction. Yet another circumstance referred to in Order
XLVII Rule 1 for reviewing a judgment has been described
as ‘for any other sufficient reason’. The said phrase has
been explained to mean a reason sufficient on grounds, at
least analogous to those specified in the rule’ (Refer:
Chajju Ram v. Neki Ram(supra) and Moran Mar Basselios
Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius
and Others(supra).”
11. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
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Neutral Citation No. ( 2024:HHC:8659 )
12. The main petition was concerned with the fact
whether the parties are co-owners or not and whether the co-
.
owner can carry out construction on the joint land or not. The
plaintiff asserted in the review petition that the status of the
defendants as co-owners was challenged by him in para 3 of the
plaint. Significantly, the plaintiff has filed a suit for an injunction
without seeking any declaration regarding the entries recorded
in the copy of jamabandi; rather he has relied upon the copy of
jamabandi for the year 2013-14 in para 1 of the plaint. He asserted
in para 6 of the main petition that he is the owner in possession
of the suit property and being the owner was entitled to seek an
injunction restraining the other co-owners from raising
construction or changing the nature of the suit property till the
property is partitioned. He further stated that he had constructed
the house but this was no ground for raising the construction on
the joint property. He asserted in para 8 that the well-settled
principle for the grant of interim relief namely the preservation
of the property and rights and liabilities of the co-sharers in
respect of the joint land was also ignored. He stated in para 9 that
the co-owner had the right in every inch of land and until the
property was partitioned its nature could not be changed. The
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Neutral Citation No. ( 2024:HHC:8659 )
respondents were raising construction to usurp the best portion
of the property. Thus, the plaintiff himself had projected before
.
this Court that he and the defendants were co-owners and it is
impermissible for him to claim in the review petition that he is
an exclusive co-owner and defendants have no right.
13. The Court had noticed in Para 10 of the judgment that
the learned counsel for the petitioner/plaintiff had submitted
that the co-owner cannot raise construction over the joint land
to deprive the other co-owners of the use of the land. Thus, the
status of the parties being co-owners was never disputed before
the Court. Merely because the plaintiff had asserted in the plaint
that the entries in favour of the defendants were wrongly
recorded does not mean that this plea was to be accepted by the
Court when learned Trial Court and learned First Appellate Court
had consistently concluded that the parties were co-owners and
the petition was filed before this Court on the premise that the
parties were co-owners. Thus, there is no error apparent on the
face of the record in treating the parties to be the co-owners.
14. A heavy reliance is placed upon the order passed by
the learned Financial Commissioner. It was submitted that the
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Neutral Citation No. ( 2024:HHC:8659 )
order passed by the learned Financial Commissioner constitutes
res judicata and the Civil Courts would be precluded from going
.
into the validity of the order. This submission is not acceptable. It
was laid down by the Hon’ble Privy Council about 100 years ago
in Nirman Singh vs. Lal Rudra Partab Narain Singh AIR 1926 P.C.
100 that the mutation proceedings are not judicial and they do
not decide the title. It was observed:-
“The perusal by their Lordships of the judgment of the
Court of the Judicial Commissioner of Oudh leads theirLordships to think that it is to a great degree based on the
mischievous but persistent error that the proceedings for
the mutation of names are judicial proceedings in which
the title to and the proprietary rights in immovable prop-
erty are determined. They are nothing of the kind, as has
been pointed out times innumerable by the Judicial Com-
mittee. They are much more in the nature of fiscal in-
quiries instituted in the interest of the State for the pur-
pose of ascertaining which of the several claimants for
the occupation of certain denominations of immovable
property may be put into the occupation of it with the
greater confidence that the revenue for it will be paid.”
15. This position was reiterated by the Hon’ble Supreme
Court in H. Lakshmaiah Reddy Vs. Venkatesh Reddy A.I.R. 2015 SC
2499 wherein it was held as under:-
“9. … The assumption on the part of the High Court that as
a result of the mutation, 1st defendant divested himself of
the title and possession of half share in suit property is
wrong. The mutation entries do not convey or extinguish
any title and those entries are relevant only for the pur-
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pose of collection of land revenue. The observations of this
Court in Balwant Singh’s case (supra) are relevant and are
extracted below :
.
“21. We have considered the rival submissions and we are
of the view that Mr Sanyal is right in his contention that
the courts were not correct in assuming that as a result of
Mutation No. 1311 dated 19-7-1954, Durga Devi lost hertitle from that date and possession also was given to the
persons in whose favour mutation was effected. In Sawarni
vs. Inder Kaur (1996) 6 SCC 223, Pattanaik, J., speaking for
the Bench has clearly held as follows: (SCC p. 227, para 7)“7. … Mutation of a property in the revenue record
does not create or extinguish title nor has it any
presumptive value on the title. It only enables theperson in whose favour mutation is ordered to pay
the land revenue in question. The learned AdditionalDistrict Judge was wholly in error in coming to a
conclusion that mutation in favour of Inder Kaur
conveys title in her favour. This erroneousconclusion has vitiated the entire judgment.”
22. Applying the above legal position, we hold that the
widow had not divested herself of the title in the suit
property as a result of Mutation No. 1311 dated 19-7-1954.
The assumption on the part of the courts below that as a
result of the mutation, the widow divested herself of the
title and possession was wrong. If that be so, legally, she
was in possession on the date of coming into force of the
Hindu Succession Act and she, as a full owner, had every
right to deal with the suit properties in any manner she
desired.”
In the circumstances, we are of the opinion that the High
Court erred in concluding that the 1st defendant by his
conduct had acquiesced and divested himself of the title of
his half share in the suit property and the said erroneous
conclusion is liable to be set aside.”
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16. Similar is the judgment in Bhimabai Mahadeo
Kambekar Vs. Arthur Import and Export Company AIR 2019 SC 719
.
wherein it was observed: –
“8. This Court has consistently held that mutation of land
in the revenue records does not create or extinguish the
title over such land nor it has any presumptive value on
the title. It only enables the person in whose favour
mutation is ordered to pay the land revenue in question.
(See Sawarni(Smt.) vs. Inder Kaur, 1996 6 SCC 223, Balwant
Singh & Anr. Vs. Daulat Singh(dead) by L.Rs. & Ors., 1997 7
SCC 137 and Narasamma & Ors. vs. State of Karnataka & Ors.,
2009 5 SCC 591).”
17. This position was reiterated in Jitendra Singh Versus
State of Madhya Pradesh & others (2021) 10 SCALE 413 wherein it
was observed:
“6. Right from 1997, the law is very clear. In the case of
Balwant Singh v. Daulat Singh (D) By Lrs., 1997 7 SCC 137,this Court had an occasion to consider the effect of
mutation and it is observed and held that mutation of
property in revenue records neither creates nor
extinguishes title to the property nor has it anypresumptive value on the title. Such entries are relevant
only for the purpose of collecting land revenue. A similar
view has been expressed in the series of decisions
thereafter.
6.1 In the case of Suraj Bhan v. Financial
Commissioner, 2007 6 SCC 186, it is observed and held
by this Court that an entry in revenue records does
not confer a title on a person whose name appears in
record-of-rights. Entries in the revenue records or
jamabandi have only “fiscal purpose”, i.e., payment
of land revenue, and no ownership is conferred on::: Downloaded on – 17/09/2024 20:32:38 :::CIS
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Neutral Citation No. ( 2024:HHC:8659 )the basis of such entries. It is further observed that
so far as the title of the property is concerned, it can
only be decided by a competent civil court. A similar
view has been expressed in the cases of Suman.
Verma v. Union of India, 2004 (12) SCC 58; Faqruddin
v. Tajuddin, 2008 (8) SCC 12; Rajinder Singh v. State of
J&K, 2008 (9) SCC 368; Municipal Corporation,Aurangabad v. State of Maharashtra, 2015 (16) SCC
689; T. Ravi v. B. Chinna Narasimha, 2017 (7) SCC 342;
Bhimabai Mahadeo Kambekar v. Arthur Import &
Export Co., 2019 (3) SCC 191; Prahlad Pradhan v. SonuKumhar, 2019 (10) SCC 259; and Ajit Kaur v. Darshan
Singh, 2019 (13) SCC 70.”
18. Therefore, the order passed by the revenue
authorities setting aside the mutation does not confer any title
on the parties and the Court has to be independently look into the
title of the parties. Thus, no advantage can be derived from the
order passed by the learned Financial Commissioner by the
review petitioner/plaintiff.
19. It was submitted that this Court had wrongly
conferred the status of co-ownership upon the defendants. It is a
challenge on merits and does not fall within the scope of the
review petition. The plaintiff can take further proceedings to
challenge the findings recorded by the Court in accordance with
the law and the review Court cannot set in appeal over the order
passed by it. Its jurisdiction is limited and this challenge does not
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fall within the purview of the limited jurisdiction to review the
order.
.
20. Further, the Court has specifically noticed in para 24
of the judgment that the observations were made regarding the
disposal of the petition and would have no bearing whatsoever
with the merits of the case. These findings take care of the
grievance of the plaintiff that the findings recorded by the Courts
would prejudice the case of the review petitioner/plaintiff on
merits.
21. Reliance was placed upon various documents filed
along with the review petition. It was submitted that these
documents pertain to the subsequent events. This is factually
incorrect inasmuch as all the documents had come into existence
before the decision of this Court in the petition under Article 227
of the Constitution of India. Even the chronology of the events
mentioned in para 3 does not mention any fact, which has taken
place subsequent to the passing of the order in the petition under
Article 227 of the Constitution of India. Thus, the plea that the
Court can take notice of the subsequent event does not apply to
the present case.
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Neutral Citation No. ( 2024:HHC:8659 )
22. Much was made out of the fact that this Court had
noticed in para 3 of its judgment that previous judgment and
.
decree were dated 19.01.2023 whereas they were dated 19.01.2013.
This is merely a clerical error, which did not make any difference
to the outcome of the proceedings and is not sufficient to
invalidate the order.
23. Consequently, there is no merit in the present petition
and the same cannot be allowed. Hence, the same is dismissed.
24. The observations made herein before shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
25. Pending application(s), if any, also stand(s) disposed
of.
(Rakesh Kainthla)
Judge
17th September, 2024
(Nikita)
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