M/S Vardhman Spinning & General Mills … vs Vijay Kumar And Others on 9 September, 2024

Himachal Pradesh High Court

M/S Vardhman Spinning & General Mills … vs Vijay Kumar And Others on 9 September, 2024

Neutral Citation No. ( 2024:HHC:8090 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Review Petition No. 137 of 2023
Reserved on: 7.8.2024

.

Date of Decision: 9.9.2024

M/s Vardhman Spinning & General Mills Ltd. …Petitioner

Versus
Vijay Kumar and others …Respondents

Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?1 No.

For the petitioner : Mr. G.D. Verma, Sr. Advocate
with Mr. Digvijay Singh
Bisht, Advocate.

For the Respondents : Mr. H.S. Rana, Advocate.

Rakesh Kainthla, Judge

The petitioner has filed the present petition seeking

review of the judgment and decree dated 25.8.2023, passed by

this Court in RSA No. 107 of 2008. It has been asserted that

defendant No.1 was held to be a non-bona fide purchaser by the

learned Trial Court while deciding issues No.3 and 8(a). It was

held that defendant No.1 was informed about the agreement at

the time of the execution of the sale deed and he could not be

called to be a bona fide purchaser for consideration. This finding
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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was upheld by the learned First Appellate Court. This Court

restored the judgment and decree passed by learned Trial Court

and the actual effect of defendant No.1 being declared a non-

.

bona fide purchaser is required to be seen. This Court has not

considered the question regarding the status of defendant No.1 as

decided by the learned Courts below. Since defendant No.1 is not

a bona fide purchaser for consideration, therefore, he was not

entitled to approach this Court. This Court was required to

consider whether defendant No.1 could have approached the

Court when he was not a bona fide purchaser for consideration.

This Court has agreed with the findings recorded by learned

Courts below but failed to consider that defendant no.1 had no

title, possession, ownership or any right over the suit property

and he could not contest the lis claiming to be the owner of the

suit property. The petitioner is in possession. Defendants No.2 to

9 are the legal representatives of Babu Ram and they have not

challenged the judgment and decree. The judgment and decree

could not have been set aside at the instance of defendant No.1.

The time is not the essence of the contract and the suit could not

be held to be barred by limitation. The findings in the judgment

and decree are contradictory. Petitioner No.1 had performed its

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part of the contract in the letter and spirit. The complete sale

consideration was paid to Babu Ram who had handed over the

possession of the suit property to the petitioner. The petitioner

.

had a possessory title which was to be protected in view of

Section 53A of the Transfer of Property Act. This Court held that

the sale deed was to be executed within a reasonable time. The

petitioner had paid the full consideration to Babu Ram and there

was no question of reasonable time. Substantial questions of law

arising in the matter have been left unanswered. The suit was

governed by Article 54 and could not have been dismissed by

incorporating the principle of reasonable time. Babu Ram had

executed General Power of Attorney in favour of the official of

the petitioner company. The sale deed could not be executed due

to the death of Babu Ram. The petitioner had specifically asserted

that cause of action arose to the plaintiff for filing the suit on

30.6.2001 when they came to know about the illegal and

fraudulent registration of the sale deed. The sale deed could not

be executed after the death of Babu Ram on 25.7.1994 as

defendants No.1 to 6 did not cooperate in submitting the fresh

documents. No permission could have been obtained by the

petitioner without the cooperation of the legal representatives.

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The Court had re-appreciated the evidence while deciding the

Regular Second Appeal. It was stated in para-14 of the judgment

that the learned counsel for the plaintiff had supported the

.

judgment and decree passed by the learned Trial Court which is

incorrect as the petitioner was contesting the judgment and

decree passed by the learned Trial Court. Therefore, it was prayed

that the present petition be allowed and the judgment and decree

2.

r to
passed by this Court be reviewed.

I have heard Mr G.D. Verma, learned Senior Counsel

assisted by Mr. Digvijay Bisht, learned counsel for the

petitioner/plaintiff and Mr. H.S. Rana, learned counsel for the

respondents/defendants.

3. Mr. G.D. Verma, learned Senior Counsel for the

petitioner/plaintiff submitted that both the learned Courts below

have consistently held that defendant No.1 is not a bona fide

purchaser for consideration. Hence, he was not competent to file

an appeal before the Court. This Court entertained the appeal and

allowed the same. It was wrongly held that the sale deed was to

be executed within a reasonable time. The suit was governed by

Article 54 of the Schedule to the Limitation Act. The plaintiff had

asserted in the plaint that cause of action arose to him on

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30.6.2001 and the suit was within limitation. The plaintiff could

not have been non-suited on the ground of delay. Therefore, he

prayed that the present petition be allowed and the judgment and

.

decree passed by this Court be set aside.

4. Mr. H.S. Rana, learned counsel for the

respondents/defendants supported the judgment and decree

passed by this Court and submitted that there is no error

apparent on the face of the record. The pleas taken by the

petitioner/plaintiff could have been taken in the appeal and not

in the review petition. The scope of the review is quite limited

and the petition does not fall within the parameters of Order 47

Rule 1 of CPC. Therefore, he prayed that the present petition be

dismissed.

5. I have given considerable thought to the submissions

made at the bar and have 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,

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(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
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
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 =

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(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
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 remove

any 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 its
soundness or results in a miscarriage of justice. In
Sow Chandra Kante and Another v. Sheikh Habib,
(1975) 1 SCC 674 this Court observed:

‘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. The present stage is not a virgin
ground but a review of an earlier order which

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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
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 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

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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
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 law
made 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 in
civil cases, review lies on any of the grounds
specified in Order 47 Rule 1 of the Code of Civil
Procedure which provides:

‘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,

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(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
r review of judgment to the Court which
passed the decree or made the order.’

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.

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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

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

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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
rreal 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 suggest
any 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 not
self-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 opinions
also 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 an
error apparent on the face of the record cannot be

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defined precisely or exhaustively, there being an
element of indefiniteness inherent in its very nature,
and it must be left to be determined judicially on the
facts 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
arrive at a different conclusion even if two views are
possible in a matter.”

8. 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 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 the

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face 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 authoritative
pronouncement 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
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:

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“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 whether

.

the conclusion of the Bombay High Court on the

question of notice is correct or not. 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. 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
should not be made unless a previous notice had been
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

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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 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
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

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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
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
found. But an error on the face of record must be
such 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.

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(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
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

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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:

’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 an
error, 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 the
Writ 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 petition

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suffers 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:

“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

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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
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 the
applicant 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 would
convert 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 a
subordinate 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,

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caution and circumspection and only in exceptional
cases.

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 was

rejected, 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 ‘second

innings’ 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
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 the
petitioner 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

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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.

(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
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

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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

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 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

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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
rmight 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 be
produced 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
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 1 CPC or
Section 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 the
ground that a different view could have been taken by

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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’. (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
Administrative Law as in Public Law. Even the law
rbends 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 its
perpetration 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 the

nature 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 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 either
specifically or by necessary implication. No
provision in the Act was brought to notice from

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which 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
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 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

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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.

12.

It was submitted that defendant No. 1 was held to be a

non-bona fide purchaser and no appeal could have been

entertained on his behalf. This submission is not acceptable. The

question of bona fide purchaser for consideration would have

come into the picture in the event of the decree of the suit

because Section 19(b) of the Specific Relief Act provides that the

specific performance of a contract can be enforced against any

person claiming under a party by a title arising subsequently to

the contract except a transferee for value and without notice of

the original contract. This means that the plaintiff can claim

specific performance against a person getting title for

consideration after his contract only if he had notice of the

contract with the plaintiff and not otherwise. A person who has

acquired the property with a notice of a previous contract can

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always defeat the claim of the plaintiff by taking the pleas which

are available to him and the law does not debar him from taking

such a plea. It was laid down by the Hon’ble Supreme Court in B.

.

Vijaya Bharathi v. P. Savitri, (2018) 11 SCC 761 that a subsequent

purchaser who may not be a bona fide purchaser can always

claim the dismissal of the suit because of a lack of readiness and

willingness. It was observed: –

“17…The High Court was clearly right in finding that the
bar of Section 16(c) was squarely attracted to the facts of

the present case, and that therefore, the fact that

Defendants 2 and 3 may not be bona fide purchasers would
not come in the way of stating that such suit must be
dismissed at the threshold because of lack of readiness and
willingness, which is a basic condition for the grant of specific

performance.” (emphasis supplied)

13. No precedent to the contrary was brought to the

notice of this Court. Hence, the plea that defendant No.1 who was

a subsequent purchaser with the notice could not have filed the

appeal before the Court cannot be accepted.

14. This Court recorded a finding that the plaintiff did not

take any steps to get the sale deed executed. The plaintiff’s plea

that it kept on waiting for the execution of the sale deed for seven

years without doing anything would show that the plaintiff was

not ready and willing to perform its part of the contract. Further,

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the Court held that even if the time is not the essence of the

contract, the sale deed has to be executed within a reasonable

time and the lapse of seven years would disentitle the plaintiff

.

from seeking the relief of specific performance. The plaintiff had

failed to show readiness and willingness and the suit could not

have been decreed as the plaintiff had not approached the Court

within a reasonable time. It was held by the Hon’ble Supreme

Court in Azhar Sultana v. B. Rajamani, (2009) 17 SCC 27 that when

the plaintiff had failed to show his readiness and willingness and

had not filed the suit within a reasonable time, the Court can

decline the discretionary relief of specific performance. It was

observed: –

“28. Section 16(c) of the Specific Relief Act, 1963

postulates continuous readiness and willingness on the
part of the plaintiff. It is a condition precedent for

obtaining relief of grant of specific performance of
contract. The court, keeping in view the fact that it

exercises a discretionary jurisdiction, would be entitled to
take into consideration as to whether the suit had been
filed within a reasonable time. What would be a reasonable
time would, however, depend upon the facts and
circumstances of each case. No hard-and-fast law can be
laid down therefor. The conduct of the parties in this
behalf would also assume significance.

29. In Veerayee Ammal v. Seeni Ammal [(2002) 1 SCC 134] it
was observed: (SCC p. 140, para 11)
“11. When, concededly, the time was not of the
essence of the contract, the appellant-plaintiff was

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required to approach the court of law within a
reasonable time. A Constitution Bench of this
Hon’ble Court in Chand Rani v. Kamal Rani [(1993) 1
SCC 519] held that in the case of the sale of

.

immovable property, there is no presumption as to

time being of the essence of the contract. Even if it is
not of the essence of the contract, the court may
infer that it is to be performed in a reasonable time

if the conditions are (i) from the express terms of
the contract; (ii) from the nature of the property;
and (iii) from the surrounding circumstances, for
example, the object of making the contract. For the

purposes of granting relief, the reasonable time has
to be ascertained from all the facts and
circumstances of the case.”

It was furthermore observed: (Veerayee Ammal
case [(2002) 1 SCC 134], SCC pp. 140-41, para 13)

“13. The word ‘reasonable’ has in law prima facie
meaning of reasonable in regard to those
circumstances of which the person concerned is

called upon to act reasonably knows or ought to
know as to what was reasonable. It may be
unreasonable to give an exact definition of the word

‘reasonable’. The reason varies in its conclusion
according to the idiosyncrasy of the individual and

the time and circumstances in which he thinks. The
dictionary meaning of ‘reasonable time’ is to be so
much time as is necessary, under the circumstances,

to do conveniently what the contract or duty
requires should be done in a particular case. In other
words, it means, as soon as circumstances permit.
In P. Ramanatha Aiyar’s Law Lexicon it is defined to
mean:

‘A reasonable time, looking at all the
circumstances of the case; a reasonable time
under ordinary circumstances; as soon as
circumstances will permit; so much time as is
necessary under the circumstances,

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conveniently to do what the contract requires
should be done; some more protracted space
than “directly”; such length of time as may
fairly, and properly, and reasonably be

.

allowed or required, having regard to the

nature of the act or duty and the attending
circumstances; all these convey more or less
the same idea.’ ”

30. It is also a well-settled principle of law that not only
the original vendor but also a subsequent purchaser would
be entitled to raise a contention that the plaintiff was not
ready and willing to perform his part of the contract.

(See Ram Awadh v. Achhaibar Dubey [(2000) 2 SCC 428],
SCC p. 431 para 6.)

15. Much was made out of the fact that in para-14 there is

a clerical error inasmuch as the Court has mentioned learned

Trial Court instead of Appellate Court in the first line, however,

the Appellate Court was mentioned subsequently in the rest of

the paragraphs. A mere clerical error of mentioning the Trial

Court when it is apparent from the whole of the judgment

including paragraph 14 that the Court meant to refer to the

Appellate court is not a ground for review. It is merely a clerical

error of the minor nature which does not affect the outcome of

the suit.

16. Reference was made to Article 54 to submit that the

suit was within limitation, however, the Court had held that

relief of specific performance is a discretionary relief which can

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be denied to the plaintiff if he fails to approach the Court within a

reasonable time. Since the plaintiff had failed to approach the

Court within the reasonable time, therefore, the relief was

.

declined to the plaintiff. Hence, in such a situation, the reference

to Article 54 of the Limitation Act will not help the plaintiff.

17. It was submitted that the defendant no. 1 had no right,

title or interest in the suit property. This is not correct. He had

acquired the title by a valid sale deed executed in his favour.

18. There is a force in the submission of Mr. H.S. Rana,

learned counsel for the respondents/defendants that the plaintiff

has taken the pleas which are available to it in the appeal. The

Court exercising the jurisdiction of reviewing the judgment does

not sit in appeal and cannot review the judgment based on the

pleas which can be taken in appeal.

19. Thus, there is no reason to review the judgment and

decree passed by this Court. Hence, the present petition fails and

the same is dismissed, so also the pending miscellaneous

application(s), if any.

(Rakesh Kainthla)
Judge
9th September, 2024
(Chander)

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