Madras High Court
B. Dhanalakshmi vs M. Shajahan And Ors. on 29 April, 2004
Equivalent citations: AIR2004MAD512, AIR 2004 MADRAS 512
Author: D. Murugesan
Bench: N. Dhinakar, D. Murugesan
JUDGMENT D. Murugesan, J.
1. By a common order made in W.A.Nos.1987 to 1993 of 2003, we have set aside the grant made in favour of the grantees, viz., the contesting respondents in W.A.Nos.1987, 1988, 1989, 1990, 1991 and 1993 of 2003. We have dismissed W.A.No.1992 of 2003 challenging the grant in respect of the grantee, viz., the contesting respondent. The grantees, whose grants were set aside by our order, have filed Review Application Nos.43 to 48 of 2004. The appellant in W.A.No.1992 of 2003 has filed Review Application No.70 of 2004.
2. The first respondent in W.A.Nos.1987 and 1990 of 2003 has filed Review Application Nos.43 and 46 of 2004 respectively. Mr. R. Natesan, learned counsel appearing for the review applicants would submit that certain periods taken by the appellants were not taken into consideration, while computing the period of 30 days. In the event, those periods are also computed, the revision petitions filed by the appellants before the State Transport Appellate Tribunal would be barred by limitation. To sustain the said argument, the learned counsel would submit that the copy applications were returned in both the cases on 16.8.2001 and the appellants have filed writ petitions for issue of the copy of the order of the Regional Transport Authority only on 5.9.2001 and there is a delay of 20 days. This Court had taken into consideration the eight days delay taken by the appellants viz., the period between 23.7.2001, the date on which the notice of timing conference was served on the Bus Owners' Association and 1.8.2001, the date on which the copy applications were made. This Court has also taken into consideration a further period of delay on the part of the appellant between 25.9.2001, the date on which the copy was furnished on the appellants and 3.10.2001, the date on which, the revision petition was filed. In the event, this 20 days is also included the total number of days would come to 36. In that event, the revision petitions are beyond the period of 30 days and consequently, the revisions are barred by limitation. Consequently, the writ appeals ought to have been dismissed.
3. Mrs. Radha Gopalan, learned Counsel appearing for the Review Applicants in Rev. Appl. No.44 of 2004 filed against the order in W.A.No.1988, Rev. Appl. No.45 of 2004 filed against the order in W.A.No.1989, Rev. Appl. No.47 filed as against the order in W.A.No.1991 and Rev. Appl. No.48 filed against the order in W.A.No.1993 of 2003 would submit that insofar as W.A.No.1988 of 2003 is concerned, the copy application was returned on 17.8.2001 and the writ appeal was filed on 3.9.2001, after a delay of 16 days. She would also submit that the copy of the order was made ready on 5.9.2001 and the copy application was made ready on 11.9.2001 and the appellant has taken delivery only on 25.9.2001. In that process, there is a delay of 14 days. The learned counsel would therefore submit that 16 days and 14 days put together, 30 days in addition to the 9 days taken by the appellant from the date of receipt of the copy of the order and the filing of the revision petition. Hence, the total number of days delay is 39. In that event, the revision petition is beyond the period of 30 days and accordingly, the revision itself is barred by limitation. She would also submit that though the vehicle was put into operation on road on 12.1.2001, the said date is mentioned in the order as 19.7.2001, which is factually incorrect. If the date 12.1.2001 is taken as the date of knowledge, the revision is barred by time. For the said reason, the writ appeal ought to have been dismissed.
4. Insofar as the W.A.No.1989 is concerned, the learned counsel would submit that the copy application was returned on 6.6.2001 and the writ petition was filed on 4.9.2001, after nearly a period of two months and 28 days. She would further submit that the date when the vehicle was put into operation was on 12.1.2001, whereas this Court, on the basis of the representation of the appellant, has taken the date as 19.7.2001, which is factually incorrect. If this period is taken into consideration as the date of knowledge, the revision is barred by limitation. In that event, the writ appeal is liable to be dismissed, as the revision itself ought to have been rejected.
5. Insofar as W.A.No.1991 of 2003 is concerned, the learned counsel would submit that the copy application was furnished to the appellant on 25.9.2001 and the revision was filed on 4.10.2001 i.e., beyond a period of 30 days. She would submit that the grant was on 27.9.2000. The grantee started operating the vehicle on 3.11.2000. The writ appellant came to know of the same immediately when the vehicle was put on road. However, he filed the application only on 19.7.2001 with a delay of nearly 8 months. Hence, the revision petition is barred by limitation. Accordingly, the learned counsel would submit that the writ appeal ought to have been dismissed.
6. Insofar as W.A.No.1993 of 2003 is concerned, the learned counsel would submit that the grantee put the vehicle on road on 4.10.2000. Even before the copy application was made by the appellant on 26.4.2001, he made a representation to the authorities for reconsideration on 28.3.2001 and therefore, it must be presumed that the appellant had the constructive knowledge of the grant and in that event, there is a delay of nearly six months from the date of knowledge till the date when the copy application was filed. If this period is taken into consideration, the revision petition is barred by limitation and consequently, this Court ought to have dismissed the writ appeal.
7. By our order in the writ appeals, we posed for ourselves basically one question as to what would be the date of knowledge of the grant the appellants who were not parties to the grants to file revision petitions. Insofar as the vehicles, which were put into operation on tentative timings, in paragraph-16, we have held that in the absence of any provision either under the Act or under the Rules enabling the R.T.A. to allow a grantee to put the vehicle on road on tentative timings, more particularly, in view of the fact that under the Rule, the R.T.A. is obligated to convene a timing conference and fix a time schedule before the vehicle is put into operation, we have held the period of operation from the date when the vehicle was put on road till the copy application was filed without there being any timing conference is fixed cannot be taken into consideration for computing the period. Therefore, we have not included the said period for computing the period of 30 days. In the event the said period is also taken into consideration, it would amount to ratifying unauthorised operation by vehicles without timing fixed as per Rule 248.
8. Insofar as the time taken by the appellants in getting the copy of the order, we have taken the dates furnished by the learned counsel for the appellants during the course of arguments and the judgment was delivered on the basis of the dates of events furnished to this Court after serving a copy of the same to the learned respective counsel for the contesting respondents. We have also delivered the judgment on the basis of the statements furnished to us by the learned Special Government Pleader in regard to the date of grant, filing of the copy application, receipt of the copy of the order etc. None of the respondents have objected to those dates till such time, the orders were pronounced. New pleas are sought to be advanced on the basis of additional materials with reference to dates. For example, Mr. Natesan, learned counsel for the Rev. Appl. No.43 and 46 would contend that when the copy application was returned on 16.8.2001, the appellant had taken 20 days time to file writ petition and this date should be excluded. Similar is the contention in some of the writ appeals by the contesting respondents. In order to consider the new pleas on the basis of fresh materials we will have to necessarily consider the scope for this Court to exercise the power of review. The issue is not res integra as it had come up before the Apex Court for more than one occasion, where the Apex Court has clearly laid down the scope of the power of this Court to review an order.
9. For the said purpose, useful reference can be made to the judgment of the Apex Court in SMT. MEERA BHANJA -vs- SMT. NIRMALA KUMARI CHOUDHURY . The Supreme Court, in paragraph-8, has broad-lined the principles on exercise of review.
"8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 C.P.C. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, , speaking through Chinnappa Reddy, J., has made the following pertinent observations:
"It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."
Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, , wherein K.C. Das Gupta, J, speaking for the Court has made the following observations in connection with an error apparent on the face of the record:
"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and it it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."
10. In PARSION DEVI AND OTHERS -vs- SUMITRI DEVI AND OTHERS , the Supreme Court has laid the law on the subject as follows:-
"7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 C.P.C. In Thungabhadra Industries Ltd. v. Govt. of A.P. (SCR at p.186) this Court opined:
"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 in an 'error apparent on the face of the record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error." (emphasis ours)
8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma 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 or 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 the 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".
10. Considered in the light of this settled position we find that Sharma, J, clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1 C.P.C. The observations of Sharma, J, that "accordingly, the order in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided" and as such the case was covered by Article 182 and not Article 181 cannot be said to fall within the scope of Order 47 Rule 1 CPC. There is a clear distinction between an erroneous decision and error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J, found the order in Civil Revision dated 25-41989 as an erroneous decision though without saying so in so many words. Indeed, while passing the impugned order Sharma, J, did record that there was a mistake or an error apparent on the face of the record which was not of such a nature, "which has to be detected by a long-drawn process of reasons" and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment-debtors could have approached the higher forum through appropriate proceedings to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a "review" of the order of Gupta, J. on the grounds detailed in the review petition. In this view of the matter, we are of the opinion that the impugned order of Sharma, J. cannot be sustained and we accordingly accept this appeal and set aside the impugned order dated 6-3-1997."
11. From the above judgments, it is seen that the law is well settled inasmuch as the power of review is available only when there is an error apparent on the face of the record and not on erroneous decision. If the parties aggrieved by the judgment on the ground that it is erroneous, remedy is only questioning the said order in appeal. The power of review under Order 47 Rule 1 C.P.C. may be opened inter alia only if there is a mistake or an error apparent on the face of the record. The said power cannot be exercised as is not permissible for an erroneous decision to be "reheard and corrected". A review application also cannot be allowed to be "an appeal in disguise". Similarly, the error apparent on the face of the record must be such an error, which must strikes one on mere looking at record and would not require any long drawn process of reasoning on points, where there may conceivably be two opinions.
12. Based on the above principle of law, we are not inclined to accede to the contention of the review applicants insofar as the relief of review by placing reliance on the time taken by the appellants from the date of return of the copy application and the date of filing the writ petition. Though the learned counsel for the review applicants Mr. R. Natesan and Mrs. Radha Gopalan may be correct in contending that while computing the period of limitation each day delay should be explained. The period taken by the appellants to file writ petitions also may have bearing in computing the period as the objectors cannot be allowed to take their own time to file writ petition. However, for the reasons as to our limited power of exercise of review our order in setting aside the grant on the ground that the revision petitions were maintainable, we are not inclined to review our order by adding the number of days taken by the writ appellants for filing the writ petitions after the copy application was received. As in that event, our order would be completely reversed.
13. Insofar as the contention of the learned counsel, Mrs. Radha Gopalan, as to the constructive knowledge about the dates of vehicles, which were put on road, on the ground that the appellant has made representation even before he made copy application, we find no force in the same, as we have held that the period of operation of the vehicle without any timings are fixed, that is, the vehicles were operated by fixation of tentative timings without there being any authority in law cannot be counted for the purpose of calculation.
14. For all the above reasons, we find no merit in the review applications. Accordingly, Rev.Appl.Nos.43 to 48 of 2004 are dismissed.
15. Coming to the Rev. Appl. No.70 of 2004, the same is filed by the appellant in W.A.No.1992 of 2003. Mr. K. Alagiriswamy, learned Senior Counsel appearing for the appellant would contend that as this Court has found that permit cannot be granted exceeding 4 kms. on the served sectors, on the facts of this case, the grantee was given permit beyond 4 kms. on the served sectors and the grant itself is illegal. When once such a finding is given, the dismissal of the writ appeal would amount to restore an illegal order. Therefore, the order must be reviewed. We cannot accept this contention as it is again questioning our findings as to the application of the appellant, which was barred by limitation and once the revision petition was rejected on the ground of barred by limitation, the question of considering the order under revision, whether the same was legal or illegal does not arise. In that view, the contention of the learned counsel cannot be accepted. Consequently Rev. Appl. No.70 of 2004 is also dismissed. Connected C.M.Ps. are closed.