Himachal Pradesh High Court
Banka Dei (Deceased) Through Lrs Rati ... vs Respondents on 18 September, 2024
Neutral Citation No. ( 2024:HHC:8710 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Review Petition No. 37 of 2024 .
Reserved on: 22.8.2024 Date of Decision: 18.09.2024.
Banka Dei (deceased) through LRs Rati Ram and others ...Petitioners Watuli Devi and others r to Versus ...Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No. For the Petitioners : Mr. Romesh Verma, Senior Advocate with Mr. Sumit Sharma, Advocate.
For the Respondents : None.
Rakesh Kainthla, Judge The present petition has been filed for reviewing the judgment and decree passed in RSA No. 145 of 2022, titled Banka Dei (since deceased) through her LRs versus Watuli Devi, decided on 29.9.2023. It has been asserted that the learned District Judge has reversed the findings of the learned Trial 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 18/09/2024 20:31:48 :::CIS 2Neutral Citation No. ( 2024:HHC:8710 ) Court in a slipshod manner. The findings were not discussed by the learned District Judge and he had failed to comply with Order .
41 Rule 31 of CPC. The Hon'ble Apex Court has repeatedly held that the Appellate Court is required to give reasons for findings to differ from the findings of the learned Trial Court. Learned Trial Court had dismissed the suit filed by the plaintiff by giving specific and categorical reasons holding that the defendant was in adverse possession. The points determined by the learned Trial Court were not touched by the learned District Judge. The revenue record does not prove the title of the property. The plaintiff had failed to establish and substantiate her title. No evidence was led to prove the family partition and no decree for possession could have been passed in favour of the plaintiff. The plaintiff had failed to prove when she was dispossessed from the suit land and in the absence of the actual date of dispossession, the suit of the plaintiff could not have been decreed. The defendants had specifically pleaded that they had been in possession of the suit land for more than 12 years before the filing of the suit and had become the owner by way of adverse possession. Learned Appellate Court had wrongly held that the entry of Davedar Bai was wrongly recorded. The husband of the ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 3 Neutral Citation No. ( 2024:HHC:8710 ) defendant has purchased the suit land and the entry was rightly recorded. The plaintiff's father had sold the suit land to the .
defendant on 15.6.1977 for ₹500/- and executed a document on 28.5.1980. This document was placed on record as Mark-X. The defendant had taken a plea of adverse possession in the alternative. The possession of the defendant was required to be protected under Section 53A of the Transfer of Property Act. The defendants were put in possession on 15.6.1977 and a document was executed to this effect on 28.5.1980. This fact had skipped the mind of the Court while delivering the judgment. Other co-
sharers were not impleaded and no declaration could have been granted in their absence. Therefore, it was prayed that the present review petition be allowed and the judgment passed by this Court be reviewed.
2. I have heard Mr. Romesh Verma, learned Senior Counsel assisted by Mr. Sumit Shrma, learned Counsel for the petitioners/defendants.
3. Mr. Romesh Verma, learned Senior Counsel for the petitioners/defendants submitted that the judgment passed by this Court suffers from errors apparent on the face of the record.
::: Downloaded on - 18/09/2024 20:31:48 :::CIS 4Neutral Citation No. ( 2024:HHC:8710 ) The land is owned by various co-sharers and all of them were not impleaded as parties. There was no proper identification of .
the land and the suit could not have been decreed in the absence of the identification. The suit was not within limitation as the plaintiff has not proved the date of her dispossession. The suit for possession can only be filed within 12 years from the date of dispossession. The learned District Judge had not complied with the provisions of Order 41 Rule 31 of the CPC as the findings recorded by the learned Trial Court were not discussed before reversing them. Therefore, he prayed that the present petition be allowed and the judgment and decree passed by this Court be reviewed.
4. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
5. Order 47 Rule 1 of CPC deals with an application for review. It reads as under:
"1. Application for review of judgment (1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 5 Neutral Citation No. ( 2024:HHC:8710 )
(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."
6. It is apparent from the bare perusal of this Section that the power of review can be exercised on the discovery of new and important matter, mistake or error apparent on the face of the record or for any other sufficient reason. It was laid down by the Hon'ble Supreme Court in S. Madhusudhan Reddy v.
V. Narayana Reddy, 2022 SCC OnLine SC 1034= (2022) 12 SCALE 261 = (2022) 4 CivCC 464 = (2022) 4 RCR(Civil) 36 that the Court ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 6 Neutral Citation No. ( 2024:HHC:8710 ) 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 has the normal feature of finality.' (emphasis added) ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 7 Neutral Citation No. ( 2024:HHC:8710 )
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 r 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 to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.::: Downloaded on - 18/09/2024 20:31:48 :::CIS 8
Neutral Citation No. ( 2024:HHC:8710 )
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,
(b) by a decree or order from which no appeal is allowed, or ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 9 Neutral Citation No. ( 2024:HHC:8710 )
(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.' Under Order XL Rule 1 of the Supreme Court Rules, no review lies except on the ground of error apparent on the face of the record in criminal cases. Order XL Rule 5 of the Supreme Court Rules provides that after an application for review has been disposed of no further application shall be entertained in the same matter.
XXX XXX XXX
56. It follows, therefore, that the power of review can be exercised for the correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in the exercise of its powers ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 10 Neutral Citation No. ( 2024:HHC:8710 ) 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 ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 11 Neutral Citation No. ( 2024:HHC:8710 ) appearing in Order 47 Rule 1 CPC" must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in Chajju Ram v. Neki Ram, AIR 1922 PC 112 and approved by .
this Court in Moran Mar Basselios Catholicos. v. Most Rev. Mar Poulose Athanasius, 1955 SCR 520 Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa, 1955 SCR 250 this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad, AIR 1955 SC 233 it was held:
'It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error, cease to be a mere error and become an error apparent on the face of the record? Learned Counsel on either side were unable to 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 ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 12 Neutral Citation No. ( 2024:HHC:8710 ) considered by another. The fact is that what is an error apparent on the face of the record cannot be 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."
7. 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 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 ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 13 Neutral Citation No. ( 2024:HHC:8710 ) 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:
"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 ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 14 Neutral Citation No. ( 2024:HHC:8710 ) 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 powers as the appellate power can correct all manners of errors committed by the subordinate courts. The following judgments may be referred to:
::: Downloaded on - 18/09/2024 20:31:48 :::CIS 15Neutral Citation No. ( 2024:HHC:8710 ) (1) Shivdeo Singh Vs. State of Punjab; AIR 1963 SC 1909 (2) Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma; AIR 1979 SC 1047 .
(3) Meera Bhanja (Smt.) Vs. Nirmala Kumari Choudhary (Smt.); (1995) 1 SCC 170.
(4) Uma Nath Pandey Vs. State of U.P.; (2009) 12 SCC 40
13. Recently, this Court in a judgment dated 24th February 2023 passed in Civil Appeal No.1167- 1170 of 2023 between S. Murali Sundaram Vs. Jothibai Kannan and Others observed that even though a judgment sought to be reviewed is erroneous, the same cannot be a ground to review in the exercise of powers under Order XLVII Rule 1 CPC. Further, in the case of Perry Kansagra Vs. Smriti Madan Kansagra[(2019) 20 SCC 753], this Court observed that while exercising the review jurisdiction in an application under Order XLVII Rule 1 read with Section 114 CPC, the Review Court does not sit in appeal over its own order.
14. In another case between Shanti Conductors (P) Ltd. Vs. Assam SEB, (2020) 2 SCC 677 this Court observed that the scope of review under Order XLVII Rule 1 read with Section 114 CPC is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue questions which have already been addressed and decided. It was further observed that an error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record.
15. From the above, it is evident that a power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions"
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8. 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 looking at the record and would not require any long-drawn process of reasoning on the points where there may conceivably by two opinions.::: Downloaded on - 18/09/2024 20:31:48 :::CIS 17
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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 nem- inem 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 ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 18 Neutral Citation No. ( 2024:HHC:8710 ) Court discarded and/or not considered the Survey Report dated 12.12.2007. Once the Survey Report dated 12.12.2007 fell for consideration before the High Court while deciding the main writ petition thereafter the same could not have .
been considered again by the High Court while deciding the review application.
19 From the impugned judgment and order passed by the High Court it appears that the High Court has decided the review application as if the High Court was exercising the appellate jurisdiction against the judgment and order dated 03.03.2017 passed in Writ Petition (MD) No.8606 of 2010 which is wholly impermissible while considering the review application under Order 47 Rule 1 read with Section 114 CPC.
20. From the impugned judgment and order passed by the High Court allowing the review application it is observed in paragraph 33 as under:
'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 ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 19 Neutral Citation No. ( 2024:HHC:8710 ) 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."
9. 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 ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 20 Neutral Citation No. ( 2024:HHC:8710 ) afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the .
evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise." (emphasis added)
23. Under the garb of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening the conclusions arrived at in a judgment. The power of review is not to be confused with the appellate power which enables the Superior Court to 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.::: Downloaded on - 18/09/2024 20:31:48 :::CIS 21
Neutral Citation No. ( 2024:HHC:8710 ) The power of review can be exercised with extreme care, 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.::: Downloaded on - 18/09/2024 20:31:48 :::CIS 22
Neutral Citation No. ( 2024:HHC:8710 ) The words "any other sufficient reason"
has been interpreted in Chajju Ram vs. Neki(supra), and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. .
Mar Poulose Athanasius & Ors. (supra) to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. & Ors., (2013) 8 SCC 337.
20.2. When the review will not be maintainable: -
(i) A repetition of old and overruled r 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 ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 23 Neutral Citation No. ( 2024:HHC:8710 ) which has to be fished out and searched.
(viii) The appreciation of evidence on .
record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.'
25. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma(supra), this Court was examining an order passed by the Judicial Commissioner who was reviewing an earlier judgment that went in favour of the appellant, while deciding a review application filed by the respondents therein who took a ground that the predecessor Court had overlooked two important documents that showed that the respondents were in possession of the sites through which 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 ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 24 Neutral Citation No. ( 2024:HHC:8710 ) 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.' (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 might have altered the judgment. In other words, the mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not 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 ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 25 Neutral Citation No. ( 2024:HHC:8710 ) 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 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 bends before justice. The entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and 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 ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 26 Neutral Citation No. ( 2024:HHC:8710 ) 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 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 ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 27 Neutral Citation No. ( 2024:HHC:8710 ) a mistake but not substitute the view taken earlier merely because there is a possibility of taking two views in a matter. A judgment may also be open to review when any new or important matter of evidence has emerged after .
passing of the judgment, subject to the condition that such evidence was not within the knowledge of the party seeking review or could not be produced by it when the order was made despite undertaking an exercise of due diligence. There is a clear distinction between an erroneous decision as against an error apparent on the face of the record. An erroneous decision can be corrected by the Superior Court, however, an error apparent on the face of the record can only be corrected by exercising review jurisdiction. Yet another circumstance referred to in Order XLVII Rule 1 for reviewing a judgment has been described as 'for any other sufficient reason'. The said phrase has been explained to mean a reason sufficient on grounds, at least analogous to those specified in the rule' (Refer: Chajju Ram v. Neki Ram(supra) and Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Others(supra)."
10. The present petition has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
11. The pleas taken by the petitioners/defendants are in the nature of an appeal against the judgment passed by this Court and do not refer to the errors apparent on the face of the record. Therefore, they are beyond the scope of the review petition.
12. The plea that the suit is bad for non-joinder of necessary parties was specifically dealt with by the Court in ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 28 Neutral Citation No. ( 2024:HHC:8710 ) paras 18 to 21 of the judgment passed by this Court. Hence, the submission that the suit was bad for non-joinder of other co-
.
owners and this fact escaped the notice of this Court is not correct.
13. The plea that the defendant had become the owner by way of adverse possession was discussed by this Court in para-
22 to 26 of the judgment and it cannot be said that the plea of adverse possession was not discussed.
14. It was held in para-27 of the judgment that the plea of adverse possession was not established as this plea was specifically asserted for the first time in September 2013. The suit was filed on 24.5.2014 and the statutory period for taking the plea of adverse possession had not expired.
15. It was submitted that the learned Trial Court had passed an elaborate judgment and the learned Appellate Court had not discussed the same, which is a violation of Order 41 Rule 31 of CPC. This is not correct. Learned Trial Court held that the plea of adverse possession by the defendant was established which finding was reversed by the learned Appellate Court in para-21 by holding that the defendant had taken the ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 29 Neutral Citation No. ( 2024:HHC:8710 ) contradictory pleas of adverse possession and the ownership by way of purchase. The document produced by the defendant was .
not a registered document and does not confer any title upon the defendant. Thus, the learned First Appellate Court had recorded a categorical finding referring the plea of adverse possession.
16. It was submitted that the land was not properly identified and the suit was bad for want of identification. This plea is not acceptable. The defendant had taken a plea of adverse possession. It was laid down by this Court in Basant Singh Versus Kishan Dayal RSA no. 187 of 2007, decided on 13.09.2019 that once the title of the plaintiff is admitted by taking the plea of adverse possession, the argument that property is not identifiable falls to the ground. It was observed:
"21. Once a plea of adverse possession has been raised, it not only pre-supposes the title over the suit land of the plaintiff, but it even admits the identification of the property or else this plea would be in the air. After all, if the defendant is in adverse possession, then obviously, the same is over the property in dispute or else he would not have raised such a plea. A plea of adverse possession implies an admission of title, which is supposedly extinguished.
22. In taking this view, I am supported by the judgment of the Punjab and Haryana High Court in Jagat Singh and others vs. Sri KishanDass and others ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 30 Neutral Citation No. ( 2024:HHC:8710 ) 2008 (149) P. L. R. 67, the relevant portion whereof reads as under:
"5. The question that the plaintiff has not .
established the identity of the suit land or the property cannot be identified, is not borne out from the record. The defendant-appellants have raised a plea of adverse possession. Once a plea of adverse possession is raised, it pre-supposes the title over the suit land of the plaintiff. The title of the plaintiff is deemed to be admitted, and the argument that the property is not identifiable falls to the ground. Therefore, the argument raised by learned counsel for the appellants that an infructuous decree could not be passed is not made but in view of the plea of adverse possession over the suit land raised by the appellants."
23. On the basis of the aforesaid reasoning, even the findings recorded by the learned Courts below to the effect that the demarcation has not been conducted in accordance with the instructions issued by the Financial Commissioner are erroneous as it was for the defendant to have established a better title than the plaintiff, especially, when he has not been able to prove his adverse possession over the suit land."
17. This position was reiterated in Nek Ram v. Surjan Singh, 2019 SCC OnLine HP 1066 = 2019 (4) Civ.CC 834. Therefore, the question of identification will not arise in the present case.
18. It was submitted that the title of the plaintiff was not established and the revenue record is not sufficient to establish the title. This Court held in para-28 that the defendant claimed ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 31 Neutral Citation No. ( 2024:HHC:8710 ) to be in possession by way of an Agreement to Sell and the title of the plaintiff was not in dispute.
.
19. Further, the defendant had taken a plea of adverse possession. It was laid down by this Court in Basant Singh Versus Kishan Dayal RSA no. 187 of 2007, decided on 13.09.2019, that when the defendant raises a plea of adverse possession, he impliedly admits the ownership of the plaintiffs over the land in dispute. It was observed:-
"24. It is more than settled that when the defendant acknowledges the title of the plaintiff by raising a plea of adverse possession, then the relief for possession can be denied to the plaintiff only in the event the defendant proves the title by way of adverse possession or proves better title in the suit land.
25. In T. Anjanappa and others vs. Somalingappa and another (2006) 7 SCC 570, the Hon'ble Supreme Court held as under:
"21. The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. The requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying the title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable."
[See also Des Raj and Ors. v. Bhagat Ram (Dead) By Lrs. and Ors. 2007 (3) SCALE 371; Govindammal ::: Downloaded on - 18/09/2024 20:31:48 :::CIS 32 Neutral Citation No. ( 2024:HHC:8710 ) v. R. PerumalChettiar&Ors., JT 2006 (10) SC 121 :
(2006) 11 SCC 600]."
20. It was submitted that the plea of Section 53A of the .
Transfer of Property Act is available to the defendant. This Court had held in para-28 of the judgment that the agreement does not show that possession was delivered pursuant to the agreement and the benefit of Section 53A of the Transfer of Property Act will not be available to the defendant.
21. Thus, all the pleas taken in the review petition were already discussed while passing the main judgment. If the defendant is aggrieved by these findings, her remedy lies by way of filing an appeal and not by filing a review petition. There is no error apparent on the face of the record and the judgment cannot be reviewed.
22. Consequently, the present petition fails and the same is dismissed.
(Rakesh Kainthla) Judge 18th September, 2024 (Chander) ::: Downloaded on - 18/09/2024 20:31:48 :::CIS