Himachal Pradesh High Court
Seema Sahai vs Sudesh Dogra & Ors on 29 July, 2024
Neutral Citation No. ( 2024:HHC:6008 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No.1645 of 2023 .
Reserved on : 10.07.2024 Date of Decision: 29.07.2024.
Seema Sahai ...Petitioner
Versus
Sudesh Dogra & Ors. ...Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No For the Petitioner : In person.
For the Respondents : Mr. Abhishek Sharma, Advocate for respondents No. 1, 2 and 6.
Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking the review of the order dated 21.08.2023 passed by this Court vide which the suit was transferred to the learned Senior Civil Judge, Shimla. It has been asserted that the petitioner had filed a complaint against the officials of the Registry of this Court as well as the learned Additional District & Sessions 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 31/07/2024 00:00:19 :::CIS 2Judge-II, Shimla, for tampering with certain documents when they were lying in the Registry of this Court. The matter was .
taken up on 12.05.2023 and it was held that the suit was required to be heard and decided by the learned Senior Civil Judge, Shimla because this Court had no pecuniary jurisdiction to hear the matter. It was further held that the matter regarding the complaint made by the petitioner has to be tried and the petitioner was directed to file an affidavit in support of complaints made by her before the Registry. The petitioner filed the affidavit in support of her complaint. The petitioner could not appear before the Court during the hearing on two occasions due to her illness. She also informed the Court through e-mails about this fact. The Court adjourned the matter. The matter was listed in August 2023 and the petitioner could not come to the Court due to the bad weather and landslides. The matter was taken up on 21.08.2023 and transferred to the Court of learned Senior Civil Judge, Shimla. The earlier orders passed by the Court were ignored, vide which the matter regarding the transfer was ordered to be kept on hold during the pendency of the inquiry. This is an error apparent on the face of the record.
::: Downloaded on - 31/07/2024 00:00:19 :::CIS 3Hence, it has been prayed that the same be corrected and the order be reviewed.
.
2. No reply was filed.
3. I have heard petitioner- Seema Sahai, who is present in person and Mr. Abhishek Sharma, learned counsel for respondents No. 1, 2 and 6.
4. Petitioner -Seema Sahai submitted that the Court had ordered for holding the inquiry but this order was ignored and the matter was ordered to be transferred. The petitioner had challenged the decree passed by the High Court and it is impermissible for the learned Senior Civil Judge, Shimla to go into the validity of the decree. The Court can hear the matter even though it does not have pecuniary jurisdiction. She relied upon the judgments of the Hon'ble Supreme Court in Indian Oil Corporation Ltd. Vs. State of Orissa (1998) 7 SCC 516, M.C. Mehta Vs. Union of India (1987) 4 SCC 466, Union of India Vs. Tarun Bhanot Singh (2005) 9 SCC 460 and State of Gujarat Vs. Patel Shantilal Nanabhai (2010) 1 SCC 81 in support of her submission.
5. Mr. Abhishek Sharma, learned counsel for respondents No. 1, 2 and 6 submitted that the Court does not ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 4 have pecuniary jurisdiction in view of the enhancement of the jurisdiction and the matter was rightly transferred to the Court .
of learned Senior Civil Judge, Shimla having pecuniary jurisdiction in the matter. Hence, he prayed that the present petition be dismissed.
6. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
7. 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
(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.::: Downloaded on - 31/07/2024 00:00:19 :::CIS 5
(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."
8. 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 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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 6 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, r 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)
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:::: Downloaded on - 31/07/2024 00:00:19 :::CIS 7
'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 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.
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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 8 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 r 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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 9 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 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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 10 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 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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 11 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 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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 12 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."
9. 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 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 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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 13 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 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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 14 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:
(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.::: Downloaded on - 31/07/2024 00:00:19 :::CIS 15
(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"
10. 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:::: Downloaded on - 31/07/2024 00:00:19 :::CIS 16
"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.
(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.' ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 17
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 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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 18 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 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.
::: Downloaded on - 31/07/2024 00:00:19 :::CIS 19An 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."
.
11. 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 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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 20 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:
r '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. 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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 21 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 r 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.
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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 22 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 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 r 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 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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 23 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:
r '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 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) ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 24
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 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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 25 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 r 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 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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 26 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 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 ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 27 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)."
12. The present petition has to be decided as per the
13. to parameters laid down by the Hon'ble Supreme Court.
It was submitted that the petitioner had made complaints against the officials of Registry of this Court and the Court had ordered on 12.05.2023, that the question regarding the transfer be kept on hold. This order was ignored and the matter was transferred to the learned Senior Civil Judge, Shimla which is an error apparent on the face of the record.
14. A perusal of the documents filed with the petition shows that the Court had ordered on 12.05.2023, that serious allegations were made against the officials of the Registry of this Court and the matter needed an inquiry. Hence, an order was passed to conduct an inquiry and submit a report to the Court.
The petitioner was directed to file an affidavit within a period of two days. It was observed on 29.05.2023, that the inquiry was ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 28 started but could not be concluded because of the absence of the petitioner. A notice was issued to the petitioner to remain .
present before the Court on 19.06.2023. It was observed on 19.06.2023, that the notice could not be served but an e-mail was received from the petitioner. Hence, the Registry was directed to send an e-mail to the petitioner asking her to make her correct address available. The matter was taken up on 04.07.2023 and it was ordered that notice be issued to the petitioner to remain present before the Court, failing which the Court would be constrained to proceed with the matter based on material available on record. The matter was taken up on 14.08.2023 on which date the petitioner was not present in person and the Court ordered that the matter be listed on 21.08.2023. The Court passed an order on 21.08.2023, transferring the case to the learned Senior Civil Judge, Shimla.
15. A perusal of the order sheets shows that the inquiry which was ordered to be conducted could not be culminated due to the absence of the petitioner. It was asserted in the petition that she could not appear before the Court due to her bad health and bad road conditions. It is not necessary to go into this controversy because the transfer of the matter to the learned ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 29 Senior Civil Judge, Shimla will not prevent the Court from conducting the inquiry on the Administrative side, which the .
Court is bound to do after receiving the complaints against the persons employed in the Court. Hence, the apprehension of the petitioner that the transfer of the matter will affect the inquiry in any manner is not justified.
16. It is undisputed that during the pendency of the suit, the pecuniary jurisdiction of the Civil Courts has been enhanced and the learned Senior Civil Judge, Shimla is competent to deal with the matter. The apprehension of the petitioner is that since the decree passed by this Court has been challenged; therefore, the learned Civil Judge is not competent to pass the decree is not justified. If it is proved on record that the decree passed by the Court suffers from the defect which makes it void, any Court can grant a declaration without being affected by the hierarchy of the Courts. The hierarchy is merely for appeal/revision and has nothing to do with the exercise of original side jurisdiction, where all the Courts are treated as equal.
17. The submission that the Court can hear the matter even if it does not have pecuniary jurisdiction is not acceptable.
::: Downloaded on - 31/07/2024 00:00:19 :::CIS 30Section 15 of CPC provides that every suit shall be instituted in the Court of the lowest grade competent to try it, which means .
that if more than one Court has the pecuniary jurisdiction to hear the matter, it is to be heard by the Courts of the lowest grade. This is also in the interest of the parties, as their right of appeal is saved which is otherwise lost to them if the matter is tried in the Court of the highest grade. Section 21 of CPC deals with the objections raised in the appeal and is not relevant to the present suit because no person had raised any objection, but the Court itself transferred the matter when it found that the Court of learned Civil Judges acquired the jurisdiction to hear the matter during the pendency of the suit. The judgments referred by the petitioner contained incorrect citations and it is difficult to locate and appreciate them.
18. The Court had noticed on 12.05.2023 that the matter fell within the jurisdiction of the learned Senior Civil Judge, Shimla but had kept it on hold pending inquiry, which could not be concluded within a reasonable time. Hence, the Court was justified in transferring the matter to the learned Senior Civil Judge, Shimla having the jurisdiction. There is no error apparent ::: Downloaded on - 31/07/2024 00:00:19 :::CIS 31 in the order dated 21.08.2023 passed by this Court to transfer the matter to the Court of learned Senior Civil Judge, Shimla.
.
19. In view of the above, the present petition fails and the same is dismissed. However, the transfer of the main matter and dismissal of the present petition will not affect the inquiry ordered by the Court on 12.05.2023. The Registrar General and Registrar (Vigilance) are directed to conclude the inquiry as soon as possible and place the result of the inquiry before Hon'ble the Chief Justice for further orders.
20. The present petition stands disposed of so, are the miscellaneous applications if any.
(Rakesh Kainthla)
29th July,2024 Judge
(Shamsh Tabrez)
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