Allahabad High Court
Smt. Ekta Agarwal And 2 Ors. vs Alindra Chandra And 3 Ors. on 14 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 2709
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- MISC. SINGLE No. - 36910 of 2019 Petitioner :- Smt. Ekta Agarwal And 2 Ors. Respondent :- Alindra Chandra And 3 Ors. Counsel for Petitioner :- Abhay Kumar Srivastva Counsel for Respondent :- Pankaj Srivastava,Ram Raj Hon'ble Rajeev Singh,J.
(Review Application No. 1694 of 2020) Heard Shri Prashant Chandra, learned Senior Counsel assisted by Shri Ram Raj Singh appearing for the review applicant-respondent no. 1 and the learned Standing Counsel.
This is an application moved on behalf of respondent no. 1 seeking review of the order dated 25th December, 2019 on the following main grounds:
"1. Writ petition is not maintainable and consequently the order passed therein is without jurisdiction and is liable to be recalled/reviewed.
2. No foundation is laid in the writ petition for passing the order dated 25th December, 2019 and no evidence has been brought on record to indicate as to how the petitioner had locus to assail the order dated 18th December, 2019 passed by District Judge, Lucknow.
3. Petitioners have abused the process of Court and had no right to approach this Court after they had abandoned their objections. Order dated 26th December, 2019 passed during the winter recess is based on incorrect and untenable pleadings.
4. As the petitioners are rank outsiders and are not entitled to any relief."
Shri Chandra, in support of the application, submitted that the court below had rightly passed the order dated 18.12.2019 in P.A. Execution Case No. 804 of 2019 (Alinda Chandra Vs. R.P. Srivastava), in compliance of the order dated 5th December, 2019 passed by this Court in Writ Petition No. 31167 (M/S) of 2019. He further submitted that the petitioners are the encroachers, therefore, they do not have any right of possession on any portion of the property in question. In support of his submission, he placed reliance on the decision of the Hon'ble Supreme Court passed in the cases of Anil Kalra Vs. J.P. Pandey & Ors., (2015) 16 SCC 694, Ravinder Kaur Vs. Ashok Kumar & Anr., (2003) 8 SCC 289, Zahurul Islam Vs. Abul Kalam & Ors. (1995) (Suppl.) 1 SCC 464, B. Gangadhar Vs. B.G. Rajalingam, (1995) 5 SCC 238 and Om Prakash Garg Vs. Ganga Sahai & Ors., (1987) 3 SCC 553.
I have considered the argument advanced by Shri Prashant Chandra, learned Senior Counsel for the review applicant-respondent no. 1 and gone through the record.
The writ petition was filed challenging the order dated 18th December, 2019 passed by District Judge, Lucknow in P.A. Execution Case No. 804 of 2019 (Alinda Chandra Vs. R.P. Srivastava). It is evident from the record that during the pendency of the aforesaid execution proceedings, petitioners filed their objections, which were duly registered by the court below. In response to the said objections, reply was also filed by the review-applicant/respondent no. 1. However, in the meantime, since the court below was vacant, respondent no. 1 filed a petition before this Court being Writ Petition No. 31167 (M/S) of 2019 (Alinda Chandra Vs. ADJ-I (Small Causes), District & Sessions Court, Lko & Ors.), in which, petitioners were not arrayed as a party. The said petition was decided vide order dated 5th December, 2019 by issuing a direction for transferring the aforesaid execution case to the court of District Judge, Lucknow with the further direction to the District Judge that the matter may be decided expeditiously. In pursuance of the said direction of this Court, an application was moved by respondent no. 1/review applicant before the District Judge on 11th December, 2019 and requested for compliance of the order 5th December, 2019. In view of the aforesaid directions of this Court, the execution case was fixed on 12.12.2019 at 2.00 p.m. for further proceeding by summoning the record from the court of JSCC, Lucknow in the court of District Judge. On the next date, respondent no. 1/review applicant appeared before the District Judge, but on the request of the officers of the court below, five days' time was granted for service of notice to the parties to the execution case and the matter was posted for 13.12.2019 and thereafter on 18.12.2019. In the order dated 18.12.2019, District Judge, Lucknow observing that the office again requested for some more time for the service on the parties, without giving any further time, issued writ of possession to the police officers for eviction.
Vide order dated 25th December, 2019, review of which has been sought by means of the present application, this Court after considering the arguments advanced by learned counsel for the petitioner as also learned counsel for the respondent no. 1/review applicant and going through the record, found that the court below while passing the order dated 18.12.2019, had wrongly interpreted the order dated 5th December, 2019 passed by this Court in Writ Petition No. 31167 of 2019 (supra) and, thus, committed error. It was also observed by this Court that the said order was passed by the court below without giving any opportunity of hearing to the petitioners, whose objections were already pending and reply of which had also been filed by respondent no. 1. Further, it is evident from the record that the provisions of Rule 89-A of General Rules (Civil) were ignored by the court below while passing the impugned order.
It is apparent from the order dated 25.12.2019 that the petition was decided with the consent of the learned counsel for the parties. It is also undisputed that since the court where the proceedings were pending, was vacant, the case was transferred to the court of District Judge in pursuance to the order of this Court dated 05.12.2019. Learned counsel for the review applicant failed to show that the notice was served on the affected parties before passing of the order dated 18.12.2019.
It is also worthy to be noticed the scope of review. The review as per the settled principle by the Apex Court as well as this Court is to the effect that the review is not a disguise appeal. The Hon'ble Apex Court in the case of Kamlesh Verma Vs. Mayawati reported in (2013) 8 SCC 320, after taking note of various judgment, summarized the principles related to review of an order/judgment. The relevant paras reads as under:-
"12. This Court has repeatedly held in various judgments that the jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is an error apparent on the face of the record. A mere repetition through different counsel, of old and overruled arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient. This Court in Sow Chandra Kante v. Sk. Habib [(1975) 1 SCC 674 : 1975 SCC (Cri) 305 : 1975 SCC (L&S) 184 : 1975 SCC (Tax) 200] held as under: (SCC p. 675, para 1) "1. Mr Daphtary, learned counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to a rehearing. May be, we were not right in refusing special leave in the first round; but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. 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. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality."
13. In a criminal proceeding, review is permissible on the ground of an error apparent on the face of the record. A review proceeding cannot be equated with the original hearing of the case. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC 167 : 1980 SCC (Tax) 222], this Court, in paras 8 and 9 held as under: (SCC pp. 171-72) "8. It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan [AIR 1965 SC 845]. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: Girdhari Lal Gupta v. D.H. Mehta [(1971) 3 SCC 189 : 1971 SCC (Cri) 279] . The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. District Judge, Delhi [(1971) 3 SCC 5] . Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1 of the Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except ''where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility': Sow Chandra Kante v. Sk. Habib[(1975) 1 SCC 674 : 1975 SCC (Cri) 305 : 1975 SCC (L&S) 184 : 1975 SCC (Tax) 200].
9. Now, besides the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the respondent, was never brought to our attention when the appeals were heard, we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record."
14. Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. This Court in Col. Avtar Singh Sekhon v.Union of India [1980 Supp SCC 562 : 1981 SCC (L&S) 381] held as under: (SCC p. 566, para 12) "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 miscarriage of justice. In Sow Chandra Kante v. Sk. Habib[(1975) 1 SCC 674 : 1975 SCC (Cri) 305 : 1975 SCC (L&S) 184 : 1975 SCC (Tax) 200] this Court observed: (SCC p. 675, para 1) ''1. ... 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 review of an earlier order which has the normal feature of finality.'"
15. 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. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. This Court in Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715] held as under: (SCC pp. 718-19, paras 7-9) "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. [AIR 1964 SC 1372] this Court opined: (AIR p. 1377, para 11) ''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 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.'
8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170] while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [(1979) 4 SCC 389] this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of 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'."
16. 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. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review. This Court, in Lily Thomas v.Union of India [(2000) 6 SCC 224 : 2000 SCC (Cri) 1056] held as under: (SCC pp. 250-53, paras 54, 56 & 58) "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 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
(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 40 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 40 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.
56. It follows, therefore, that the power of review can be exercised for 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 exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.
58. Otherwise also no ground as envisaged under Order 40 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 [Sarla Mudgal v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] . 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 case [Sarla Mudgal v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] . 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 violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words ''any other sufficient reason appearing in Order 47 Rule 1 CPC' must mean ''a reason sufficient on grounds at least analogous to those specified in the rule' as was held in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 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 [AIR 1954 SC 440] , 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 Ishaque [AIR 1955 SC 233], it was held: (AIR p. 244, para 23) ''23. ... 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 mere error, and become an error apparent on the face of the record? The 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, C.J. in--Batuk K. Vyas v. Surat Borough Municipality [ILR 1953 Bom 191 : AIR 1953 Bom 133], 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 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 40 of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case [Sarla Mudgal v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569]. The petition is misconceived and bereft of any substance."
17. In a review petition, it is not open to the Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence 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. This Court in Kerala SEB v. Hitech Electrothermics & Hydropower Ltd.[(2005) 6 SCC 651] held as under: (SCC p. 656, para 10) "10.... In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. The learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise."
18. Review is not rehearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to reopen concluded adjudications. This Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd. [(2006) 5 SCC 501], held as under: (SCC pp. 504-505, paras 11-12) "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 rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. 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."
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 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" have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] 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. [(2013) 8 SCC 337 : JT (2013) 8 SC 275] 20.2. 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.
21. Keeping the above principles in mind, let us consider the claim of the petitioner and find out whether a case has been made out for interference exercising review jurisdiction."
In view of the aforesaid facts and discussions, there is no illegality in the order passed by this Court. The review application, accordingly, fails and stands dismissed.
February 14, 2020 VKS