Allahabad High Court
Smt.Waseem Khan {Civil} vs Nagar Mahapalika on 19 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 414
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved On: 12.02.2020
Pronounced On: 19.02.2020
Court No.3
Review Application No.53705 of 2017
IN
Case :- MISC. BENCH No. - 6166 of 1986
Petitioner :- Smt.Waseem Khan {Civil}
Respondent :- Nagar Mahapalika
Counsel for Petitioner :- P.K.Khare,Akshat Srivastava,Apoorva Tewari,Meha Rashmi,P.Chandra,Subhash Vidyarthi,U.K. Srivastav
Counsel for Respondent :- U.Chandra,Savitra Vardhan Singh,Shailendra S.Chauhan,Shashi Prakash Singh,U.P.Srivastava
Hon'ble Ved Prakash Vaish,J.
Hon'ble Narendra Kumar Johari,J.
(Delivered by Hon'ble Ved Prakash Vaish, J.)
1. Heard Sri Prashant Chandra, learned Senior Advocate assisted by Ms. Meha Rashmi, learned counsel for the petitioner and Sri Savitra Vardhan Singh, learned counsel for respondent.
2. This is an application for review of judgment and order dated 04th May, 2015 passed by a Bench comprising of Hon'ble Mr. Justice Amreshwar Pratap Sahi and Hon'ble Mr. Justice Aditya Nath Mittal in Writ Petition No.6166 (MB) of 1986 and since his lordship (Hon'ble Mr. Justice Amreshwar Pratap Sahi) has been elevated as Hon'ble the Chief Justice and Hon'ble Mr. Justice Aditya Nath Mittal has retired, hence, this review application has come up before this Bench.
3. The brief facts giving rise to the present application are that the petitioner filed a writ petition seeking directions to the respondent to execute the formal Lease Deed in favour of the petitioner in pursuant of the order of allotment dated 07th November, 1985. The said petition was disposed of by this Court vide order dated 04th May, 2015.
4. The relevant portion of judgment and order dated 04th May, 2015 reads as under:
"...Having considered the submissions raised, the Court proceeded to resolve the matter by allowing the petitioner to withdraw the amount which has already been lying with the Nagar Mahapalika in the circumstances indicated above, for which Sri Apoorva Tewari contends that the petitioner should be refunded an appropriate amount as it has been lying with the Nagar Mahapalika for long.
This, in the opinion of the Court, is the only way out inasmuch as the petitioner has not been able to establish that the offer made to her was a valid transaction in accordance with law. Secondly, in the absence of a lease, there was no concluded contract for being enforced. Thirdly, there was also no legitimate expectation in the absence of any right so as to interfere with the decision of the respondents to rescind the offer made to the petitioner. The Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, envisages the settlement of the properties of such local bodies through Sections 128 and 129 thereof. The order relied on by the petitioner, that was later on rescinded, appears to be more in the nature of a concession or a grant that does not appear to be as an outcome of a lawful exercise under the provisions referred to herein above. No material has been placed to establish that the procedure prescribed in the aforesaid provisions was followed nor any exercise appears to be available to determine the market value of the property prior to it's settlement.
In view of this concluded legal position and the refund sought by the learned Counsel for the petitioner to which learned Counsel for the Nagar Mahapalika has no objection, we find, in the interest of justice, that since the amount deposited by the petitioner has already been offered to be refunded by the Nagar Mahapalika, it would be appropriate that a sum of Rs.5 Lacs in all is refunded to the petitioner in the background aforesaid. Sri Tewari for the petitioner and Sri Singh for the Nagar Mahapalika are not at variance to this arrangement to finally settle the dispute.
This writ petition is, therefore, disposed of with a direction that in view of these developments, the order aforesaid has been passed with the agreement of the parties and the petitioner would be entitled to refund of Rs.5 Lacs only from the Nagar Mahapalika which shall be handed over to the petitioner within 15 days from today."
5. Learned counsel for the applicant submitted that there is an error apparent on the face of the record in holding that entire allotment proceedings were contrary to the U.P. Nagar Mahapalika Rules, 1958 without referring to any such rule and even in the absence of letter dated 27nd February, 1988 as well as resolution dated 21st April, 1988.
6. Learned counsel for the applicant also submitted that the writ petition was disposed of on the concession given by the earlier counsel and no such authority was given by the petitioner to make such statement.
7. On the other hand, learned counsel for the respondent urged that the writ petition was disposed of on 04th May, 2015 on the basis of statement made by learned counsel for the petitioner and there is no ground for review of judgment and order dated 04th May, 2015.
8. Learned counsel for the respondent further submitted that the petitioner challenged the order dated 04th May, 2015 by filing Special Leave Petition which was dismissed by the Hon'ble Supreme Court on 14.03.2016.
9. We have carefully considered the submissions made by learned counsel for both the parties and gone through the material available on record.
10. At the outset, it may be mentioned that aggrieved by the judgment and order dated 04th May, 2015 passed in Writ Petition No.6116 (MS) of 1986, the applicant filed a petition bearing Special Leave to Appeal (C) No.4384 of 2016. Vide order dated 14.03.2016, the said writ petition was dismissed by the Hon'ble Supreme Court. The Hon'ble Supreme Court passed the following order:
"Delay condoned.
No ground for interference is made out to exercise our jurisdiction under Article 136 of the Constitution of India.
The special leave petition is dismissed.
Pending application (s), if any, stand(s) disposed of. "
11. Now, coming to the merits of the review petition, it may be mentioned that the grounds taken in the review petition amount to almost rehearing of the matter and some of arguments advanced are such as were not raised earlier. A review petition cannot be made as an opportunity to re-argue the matter.
12. On perusal of Rule 1 of Order 47 of the C.P.C., 1908 it is manifestly clear that power of review is a creature of the statute and no court or quasi-judicial body can review its judgment or order unless it is legally empowered to do so. It must be conferred by law either specifically or by necessary implication. The review court cannot sit as appellate court. The mere possibility of two views is not a ground for review.
13. It is well settled that power of review can be exercised for the correction of a mistake and not to substitute a view. The 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 searched. It must be an error of inadvertence. A court of review has only a limited jurisdiction and it can allow a review on the grounds; (i) discovery of new and important matter or evidence, which after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed or order was made; (ii) mistake or error apparent on the face of the record, or (iii) for any other sufficient reason.
14. Rule 1 of Order 47 of the C.P.C., 1908 reads as under:
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 from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
15. In 'Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh',AIR 1964 SC 1372 the Court said:
"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."
16. In 'Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma' 1979 (4) SCC 389 the Court said:
"... there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate powers which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."
17. Again, in 'Meera Bhanja v. Nirmala Kumari Choudhury', AIR 1995 SC 455 while quoting with approval the above passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Shartn (supra), the 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.
18. In 'Parsion Devi and others Vs. Sumitri Devi and others', 1997 (8) SCC 715 it was held that an error, which is not self evident and has to be detected by process of reasoning, can hardly be said to be error apparent on the face of the record justifying the court to exercise powers of review in exercise of review jurisdiction.
19. In 'Rajendra Kumar Vs. Rambai', AIR 2003 SC 2095, the Apex Court has observed about limited scope of judicial intervention at the time of review of the judgment and said:
"The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgement/order cannot be disturbed."
20. A close scrutiny of the aforesaid judgments mentioned above it is clear that review is not an appeal in disguise. Rehearing of the matter is impermissible in the garb of review. It is an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. In 'Lily Thomas Vs. Union of India', AIR 2000 SC 1650, the Court held that power of review can be exercised for correction of a mistake and not to substitute a new. Such powers can be exercised within limits of the statute dealing with the exercise of power. The aforesaid view is reiterated in 'Inderchand Jain Vs. Motilal', (2009) 4 SCC 665.
21. In another case, 'Kamlesh Verma Vs. Mayawati and others', 2013 (8) SCC 320, it was observed:
"19. 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 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.
Summary of the Principles:
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 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 Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526, 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 vs. Sandur Manganese & Iron Ores Ltd. & Ors., 2013 (8) SCC 337.
22.2. When the review will not be maintainable:-
(i) A repetition of old and overruled argument 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 miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard 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 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." (emphasis supplied) ".
22. In the instant case, we find that the writ petition was disposed of on the submissions made by learned counsel for the petitioner for refund of the amount to which learned counsel for the Nagar Mahapalika agreed.
23. Recently, a similar issue was considered by the Hon'ble Supreme Court in the case of 'Om Prakash v. Suresh Kumar', Civil Appeal Nos.833-834 of 2020 decided on 30.01.2020 and it was held :
" 9. The moot question is: whether the appellant should be bound by the statement made by his counsel before the High Court that the respondent- tenant will be reinducted in equal area in the newly constructed building within one month i.e. on or before 30.11.2017 from the date of completion of the construction work i.e. 31.10.2017. From the tenor of the statement made before the High Court on behalf of the appellant, it is obvious that it is an unequivocal statement made by the counsel engaged by the appellant to espouse his (appellant's) cause before the High Court. It is not the case of the appellant that he had expressly instructed his counsel not to make such a statement. Further, the statement was in respect of the commitment of the appellant qua the subject matter of the proceedings in which the counsel was engaged and instructed to appear. Not only that, right from the beginning and even before this Court, an attempt was made by the parties to explore possibility of working out an amicable solution, as is evident from the order dated 9.1.2017 before the respondent was put to notice of these appeals, and more particularly, dated 14.11.2017.
10. Considering the above, the appellant cannot now be allowed to resile from the statement made before the High Court, which the High Court justly declined to undo in the review petition filed by the appellant for that purpose. In the peculiar facts of this case, the decision of this Court in Himalayan Coop. Group Housing Society (supra) will be of no avail to the appellant. Inasmuch as, it is not a case where the counsel, who made the statement was not engaged by the appellant before the High Court. The engagement was in respect of eviction proceedings and the statement was in relation to the commitment of the appellant qua the subject matter thereof and being an unequivocal statement, it will be binding on the appellant. In any case, even this Court showed indulgence to the appellant on the basis of impression given to this Court about the possibility of at least sparing a small room for the respondent, which was the basis for issuing notice to the respondent, as is evident from the orders dated 9.1.2017 and 15.2.2017."
24. Applying the aforesaid law to the facts and circumstances of the present case, we are of the considered opinion that there is no sufficient ground for review of judgment and order dated 04th May, 2015.
25. In the light of aforesaid judgments, the application for review deserves to be dismissed and the same is hereby dismissed.
(Narendra Kumar Johri) (Ved Prakash Vaish)
Judge Judge
Order Date :- 19th Feb., 2020
Shanu/-