Himachal Pradesh High Court
Bainsu (Since Deceased) Through Lrs vs Budhia And Anr on 3 January, 2025
Neutral Citation No. ( 2025:HHC:573 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Review Petition No. 12 of 2024 Reserved on: 20.12.2024 Date of Decision: 3rd January 2025.
Bainsu (since deceased) through LRs ....Petitioners Versus Budhia and anr ....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? Yes
For the Petitioner : Mr. Rajinder Sharma, Sr. Advocate
with Ms. Vidhushi Sharma,
Advocate.
For the Respondents : Mr. Nimish Gupta, Advocate.
Rakesh Kainthla, Judge
The petitioner has filed the present review petition asserting that he had filed an application under Order 41 Rule 27 of CPC for leading additional evidence, which was registered as CMP No. 5735 of 2018; however, this application was not decided by the Court. This is an error apparent on the face of the record;
hence, it is prayed that the present petition be allowed and the judgment and decree passed by the Court in RSA No. 36/2007 dated 08.09.2007 be recalled.
Whether reporters of the local papers may be allowed to see the judgment? Yes 2 Neutral Citation No. ( 2025:HHC:573 )
2. No reply to the petition was filed.
3. Heard.
4. The scope of the review was explained by the Hon'ble Supreme Court in State (NCT of Delhi) v. K.L. Rathi Steels Ltd., (2024) 7 SCC 315: 2024 SCC OnLine SC 1090, and it was observed at page 342:
37. Read in conjunction with Section 114CPC, Order 47 Rule 1 thereof has three broad components which need to be satisfied to set the ball for a review in motion -- (i) "who"
means the person applying must demonstrate that he is a person aggrieved; (ii) "when", means the circumstances a review could be sought; and (iii) "why", means the grounds on which a review of the order/decree ought to be made. Finally comes the "what", meaning thereby the order the court may make if it thinks fit. Not much attention is generally required to be paid to components (i) and (ii) because of the overarching difficulties posed by component
(iii). However, in deciding this reference, component (i) would also have a significant role apart from the Explanation inserted by way of an amendment of CPC.
38. Let us now briefly attempt a deeper analysis of the provision. We are conscious that the provisions relating to review have been considered in a catena of decisions, but the special features of these RPs coupled with the fact that two Hon'ble Judges of this Court have delivered a split verdict make it imperative for us not to miss any significant aspect.
39. A peep into the legislative history would reveal that Rule 1 of Order 47CPC, which is part of the First Schedule appended thereto, bears a very close resemblance to its predecessor statutes, i.e. Section 623 of the Codes of Civil 3 Neutral Citation No. ( 2025:HHC:573 ) Procedure of 1877 and 1882. The solitary legislative change brought about in 1976 in Order 47CPC resulted in the insertion of an Explanation at the foot of Rule 1, which is at the heart of the controversy here.
40. The first and foremost condition that is required to be satisfied by a party to invoke the review jurisdiction of the court, whose order or decree, as the case may be, is sought to be reviewed, is that the said party must be someone who is aggrieved by the order/decree.
41. The words "person aggrieved" are found in several statutes; however, the meaning thereof has to be ascertained with reference to the purpose and provisions of the statute. In one sense, the said words could correspond to the requirement of "locus standi" in relation to judicial remedies. The need to ascertain the "locus standi" of a review petitioner could arise if he is not a party to the proceedings but claims the order or decree to have adversely affected his interest. In terms of Order XLVII of the 2013 Rules read with Order 47CPC, a petition for review at the instance of a third party to the proceedings too is maintainable, the quintessence being that he must be aggrieved by a judgment/order passed by this Court. This is what has been held in Union of India v. Nareshkumar Badrikumar Jagad [Union of India v. Nareshkumar Badrikumar Jagad, (2019) 18 SCC 586]. That is, of course, not the case here. Normally, in the context of Rule 1 of Order 47CPC, it is that person (being a party to the proceedings) suffering an adverse order and/or decree who, feeling aggrieved thereby, usually seeks a review of the order/decree on any of the grounds outlined therein. The circumstances where a review would lie are spelt out in clauses (a) to (c).
42. Order 47 does not end with the circumstances as Section 114CPC, the substantive provision, does. Review power under Section 114 read with Order 47CPC is available to be exercised, subject to fulfilment of the above 4 Neutral Citation No. ( 2025:HHC:573 ) conditions, on setting up by the review petitioner any of the following grounds:
(i) discovery of new and important matter or evidence; or
(ii) mistake or error apparent on the face of the record; or
(iii) any other sufficient reason.
43. Insofar as (i) (supra) is concerned, the review petitioner has to show that such evidence (a) was actually available on the date the court made the order/decree, (b) with reasonable care and diligence, it could not be brought by him before the court at the time of the order/decree, (c) it was relevant and material for a decision, and (d) by reason of its absence, a miscarriage of justice has been caused in the sense that had it been produced and considered by the court, the ultimate decision would have been otherwise.
44. Regarding (ii) (supra), the review petitioner has to satisfy the court that the mistake or error committed by it is self-evident and such mistake or error can be pointed out without any long-drawn process of reasoning, and, if such mistake or error is not corrected and is permitted to stand, the same will lead to a failure of justice. There cannot be a fit-in-all definition of "mistake or error apparent on the face of the record", and it has been considered prudent by the courts to determine whether any mistake or error does exist considering the facts of each individual case coming before it.
45. With regard to (iii) (supra), we can do no better than refer to the traditional view in Chhajju Ram [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11: AIR 1922 PC 112], a decision of a Bench of seven Law Lords of the Judicial Committee of the Privy Council. It was held there that the words "any other sufficient reason" means "a reason sufficient on grounds at least analogous to those specified immediately previously", meaning thereby (i) and (ii) (supra). Notably, Chhajju Ram [Chhajju Ram v. Neki, 1922 5 Neutral Citation No. ( 2025:HHC:573 ) SCC OnLine PC 11: AIR 1922 PC 112] has been consistently followed by this Court in a number of decisions starting with Moran Mar Basselios Catholicos v. Mar Poulose Athanasius [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526].
46. There are recent decisions of this Court which have viewed "mistake" as an independent ground to seek a review. Whether or not such decisions express the correct view need not detain us since the review here is basically prayed in view of the subsequent event.
xxxxx J. Other precedents on review
59. Precedents on the aspect of review are legion, and we do not wish to burden this judgment by tracing all the decisions. However, only a few that were considered in the split verdict, some which were cited by the parties before us and some that have emerged on our research on the subject and are considered relevant, are discussed/referred to here.
60. Two of these decisions, viz. A.C. Estates v. Serajuddin & Co. [A.C. Estates v. Serajuddin & Co., 1965 SCC OnLine SC 295 :
(1966) 1 SCR 235: AIR 1966 SC 935] and Shatrunji v. Mohd. Azmat Azim Khan [Shatrunji v. Mohd. Azmat Azim Khan, (1971) 2 SCC 200] were rendered prior to the introduction of the Explanation in Rule 1 of Order 47CPC. Significantly, even without the Explanation, substantially the same view was expressed.
61. In A.C. Estates [A.C. Estates v. Serajuddin & Co., 1965 SCC OnLine SC 295 : (1966) 1 SCR 235: AIR 1966 SC 935], a Bench of three Hon'ble Judges of this Court, while dismissing the civil appeal and upholding the order of the High Court of Calcutta, held as follows : (SCC OnLine SC para 16) "16. ... Our attention in this connection is drawn to Section 29(5) of the Act, which gives power to the Controller to review his orders and the conditions laid down under Order 47 of the Code of Civil Procedure. But this cannot be a case of review on the ground of discovery 6 Neutral Citation No. ( 2025:HHC:573 ) of new and important matter, for such matter has to be something which exists at the date of the order and there can be no review of an order which was right when made on the ground of the happening of some subsequent event (see Kotagiri Venkata Subbamma Rao v. Vellanki Venkatrama Rao [Kotagiri Venkata Subbamma Rao v. Vellanki Venkatrama Rao, 1900 SCC OnLine PC 12 :
(1899-1900) 27 IA 197] )." (emphasis supplied)
62. The next is the decision of a Bench of two Hon'ble Judges of this Court in Shatrunji [Shatrunji v. Mohd. Azmat Azim Khan, (1971) 2 SCC 200] . While dismissing an appeal and upholding the order [Mohd. Azamat Azim Khan v. Shatrunji, 1963 SCC OnLine All 50] of the Allahabad High Court, reference was made to "any other sufficient reason" in Rule 1 of Order 47CPC and the decision in Kotagiri Venkata Subbamma Rao [Kotagiri Venkata Subbamma Rao v. Vellanki Venkatrama Rao, 1900 SCC OnLine PC 12 : (1899-1900) 27 IA 197] whereupon it was held :
(Shatrunji case [Shatrunji v. Mohd. Azmat Azim Khan, (1971) 2 SCC 200], SCC pp. 203-204, para 13) "13. ... the principles of review are defined by the Code, and the words "any other sufficient reason" in Order 47 of the Code would mean a reason sufficient on grounds analogous to those specified immediately previously in that order. The grounds for review are the discovery of new matters 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 the review is asked for on account of some mistake or error apparent on the face of the record. In Kotagiri Venkata Subbamma Rao v. Vellanki Venkatrama Rao [Kotagiri Venkata Subbamma Rao v. Vellanki Venkatrama Rao, 1900 SCC OnLine PC 12 :
(1899-1900) 27 IA 197] Lord Davey at IA p. 205 of the Report said that 'the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event'." (emphasis supplied) 7 Neutral Citation No. ( 2025:HHC:573 )
63. What was laid down in Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741], upon reading Order 47CPC, can be better understood in the words of the Hon'ble Judge authoring the judgment. The relevant passages are quoted hereunder : (SCC pp. 764-65, paras 88-90) "88. ... Section 114 of the Code empowers a court to review its order if the conditions precedent laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.
89. Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review will be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
90. Thus, a mistake on the part of the court, which would include a mistake in the nature of the undertaking, may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit"."
In the next paragraph, their Lordships quoted a portion of para 35 from the larger Bench decision in Moran Mar Basselios Catholicos [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526] but held that "the said rule is not universal".
8Neutral Citation No. ( 2025:HHC:573 )
64. Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741] was followed in Jagmohan Singh v. State of Punjab [Jagmohan Singh v. State of Punjab, (2008) 7 SCC 38]. It was held there that Rule 1 of Order 47CPC does not preclude the High Court or a court from taking into consideration any subsequent event and that if imparting justice in a given situation is the goal of the judiciary, the court may take into consideration (of course on rare occasions) the subsequent events.
65. This Court, in para 20 of the decision in Kamlesh Verma v. Mayawati [Kamlesh Verma v. Mayawati, (2013) 8 SCC 320 : (2013) 3 SCC (Civ) 782 : (2013) 4 SCC (Cri) 265 :
(2014) 1 SCC (L&S) 96], after surveying previous authorities and following Chhajju Ram [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11: AIR 1922 PC 112] and Moran Mar Basselios Catholicos [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526] summarised the principles of review and illustrated when a review would be and would not be maintainable. Despite the observation in Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741] limiting Moran Mar Basselios Catholicos [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526], Kamlesh Verma [State (NCT of Delhi) v. Kartar Singh, 2016 SCC OnLine SC 1525] thought it fit to agree with the latter decision.
66. Recently, in S. Madhusudhan Reddy v. V. Narayana Reddy [S. Madhusudhan Reddy v. V. Narayana Reddy, (2022) 17 SCC 255: 2022 SCC OnLine SC 1034], a Bench of three Hon'ble Judges has accepted the meaning of the ground "for any other sufficient reason" as explained in Chhajju Ram [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11: AIR 1922 PC 112], Moran Mar Basselios Catholicos [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526] and Kamlesh Verma [State (NCT of Delhi) v. Kartar Singh, 2016 SCC OnLine SC 1525].
9Neutral Citation No. ( 2025:HHC:573 )
5. The present petition has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
6. It is undisputed that the appellant had filed an application under Order 41 Rule 27 of CPC, which was registered as CMP No. 5735 of 2018. Respondent sought time to file a reply to the application on 27.07.2018, which was granted. It appears that thereafter, this application was not listed before the Court, and consequently, it escaped the attention of this Court while passing the judgment on 08.09.2023. A similar situation arose before this Court in Sauju vs Gulab Singh Review Petition no. 10 of 2016, decided on 12.04.2017, and it was held that the judgment passed by the Court without deciding the application under Order 41 Rule 27 is liable to be recalled. It was observed:
"5. Now, if the controversy is seen in the light of the above legal principles, the present is a case where an error is apparent on the face of the record because while considering the main matter, i.e. RSA No. 181 of 2002, an application under Order 41 Rule 27 CPC registered as CMP No. 193 of 2012 had escaped the notice of this Court and could not be taken up for consideration therewith. However, the fault did not lie with the Court and rather attributed to the review petitioners because on the day of hearing of the appeal, neither they nor learned counsel representing them opted for putting appearance. The appeal as such was considered in their absence and decided on merits. Anyhow, the dismissal of the appeal without 10 Neutral Citation No. ( 2025:HHC:573 ) taking into consideration an application under Order 41 Rule 27 CPC filed by the review petitioners is certainly tantamount to an error apparent on the face of the record. The present, as such, is a fit case where, on acceptance of this petition, the judgment passed in RSA No. 181 of 2002 on 5.6.2015 deserves to be recalled, and the appeal heard on merits along with the application as aforesaid. This is an error apparent on the face of the record and is liable to be corrected in the exercise of the review jurisdiction of the Court. "
7. A similar view was taken in Hari Singh vs Chino Review Petition no. 14 of 2018, decided on 14.10.2022, wherein it was observed:
"5. Avowedly, the law relating to the review petition is settled, which has the following fundamentals:
"(i) The 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 sufficient reason that is analogous to the other two grounds."
6. The case of the petitioner falls in the third category, as mentioned hereinabove, as this Court is of the opinion that during the final hearing of the regular second appeal, review whereof is sought through the instant petition, an application under Order 41, Rule 27 CPC for production of additional evidence was pending, so this Court without deciding the same, prior to the final verdict of the case, erred, as it escaped the notice of this Court and it was not even pointed out by either of the counsel during the hearing of the case. In these circumstances, this Court is of the opinion that Regular Second Appeal No. 393 of 2005 is required to be reheard on merits, as there is an error apparent on the face of the record in not considering the 11 Neutral Citation No. ( 2025:HHC:573 ) vital material, which was on record, including the pending application filed under Order 41, Rule 27 CPC. Thus, the instant review petition is allowed, and resultantly, RSA No. 393 of 2005 is revived."
8. In view of the above, the present application is allowed. The judgment and decree dated 08.09.2023 passed in RSA No. 36/2007 are ordered to be recalled. The RSA is ordered to be restored to its original number and the same be listed for final hearing before the appropriate Bench having Roster along with the application for leading additional evidence.
9. The present petition stands disposed of.
(Rakesh Kainthla) Judge 3rd January, 2025 (saurav pathania)