Gujarat High Court
Rama Dahyabhai Padhiyar vs Chanda Shankarbhai ... on 8 September, 2014
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/MCA/483/2014 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR DIRECTION) NO. 483 of 2014
In SECOND APPEAL NO. 91 of 2013
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RAMA DAHYABHAI PADHIYAR....Applicant(s) Versus CHANDA SHANKARBHAI GOHEL....Opponent(s) ================================================================ Appearance:
MR GIRISH M DAS, ADVOCATE for the Applicant(s) No. 1 MR RASESH H PARIKH, ADVOCATE for the Opponent(s) No. 1 MR.HEMANG H PARIKH, ADVOCATE for the Opponent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 08/09/2014 CAV ORDER The present Miscellaneous Civil Application is filed for recalling the order dated 25th June, 2013 passed in Second Appeal. By the said order, the Second Appeal of the applicant-appellant-original defendant was dismissed upholding the finding of the first appellate court that defendant's occupation of the premises was purely on permissive basis and the decree passed by it was confirmed.
2. The prayers made in this Application are;
(i) to recall order dated 25th June, 2013; (ii) to direct the Principal Senior Civil Judge, Anand to take additional evidence and after recording the evidence, return the same to this Court with its finding within Page 1 of 7 C/MCA/483/2014 CAV ORDER three months; (iii) this court may frame issues suggested by the applicant and adopt the above course keeping the present Second Appeal pending for three months.
3. Learned advocate for the applicant Mr.Girish N. Das vehemently submitted with reference to the contentions in the Application that the Application was not for review but the prayer was for re-calling of the judgment. It was submitted that the trial court failed to frame the proper issues. One of the issues ought to have been framed was on the aspect of limitation, it was submitted. It was pleaded in the Application and emphasized that the trial court did not properly appreciate the deposition of the original plaintiff and other evidence. It was submitted that therefore this Court may recall the order and adopt the course under Order 41 Rule 25 of the Code of Civil Procedure, 1908, which provides that the appellate court may frame issues and refer them for trial to the court whose decree is appealed from. In the Memorandum of the Review Application, reliance was placed on decisions (i) of Bombay High Court in Manjulabai wd/o. Shalikram Gohate Vs Bhagirathibai wd/o Ganeshrao Gohate; (ii) of the Supreme Court in Shantidevi Vs Daro Devi [(2006) 13 SCC 775] in support of the contentions.
4. Learned advocate also submitted written arguments. They were took into account. The submissions in the written arguments in their gist are as under.
Page 2 of 7C/MCA/483/2014 CAV ORDER
(i) In any view Review Application under Order 47 Rule 1, CPC, was maintainable for seeking additional evidence. The contention of learned advocate for the respondent that Review Application is not maintainable and not acceptable in view of Supreme Court decision in S. Bagirathi Ammal Vs Palani Roman Catholic Mission [(2009) 10 SCC 464];
(ii) The prayers in the Application were not for review but for recalling of the order and that the cause title of the Application indicated that it was under Order 41 Rule 25 read with Articles 226 and 14 of the Constitution;
(iii) These issues were required to be framed by the trial court which were not framed; (a) whether the suit is time barred as per the Limitation Act, 1963?; (b) whether the defendant proves adverse possession of the suit premises?; (c) whether suit is maintainable on the cause of action as set out in the plaint?
5. On the other hand learned advocate Mr.H.M. Parikh submitted that the Application was for review of the order in Second Appeal and the same deserved to be dismissed as there was no ground for review. He submitted that all the contentions of the applicant were misplaced and that provisions of Order 41 Rule 25, CPC, would not apply.
5. The prayer for recalling of judgment is nothing but a prayer of review. In essence and in substance the applicant seeks a review of the order by which the Second Appeal was decided and dismissed. It is not permissible to take recourse of Order 41 Rule 25, CPC. Under the said provisions while exercising appellate jurisdiction, the appellate court may frame Page 3 of 7 C/MCA/483/2014 CAV ORDER the issue if it finds it proper and remand the matter to have findings on those issues. In other words, the said power may be exercised in a given case while examining the judgment appealed against. Once the appeal is decided, the Court stands divested of the seisen of the case and the jurisdiction. Reviewing and reopening a case would not be permissible on that ground. All the grounds pleaded in course of the hearing were considered and the Second Appeal was decided. The contention that Order 41 Rule 25 may be resorted to and the judgment may be recalled is devoid of any merit and could not be reached by the applicant for recalling the order.
5.1 Moreover, the contention on the aspect of limitation and non-framing of proper issues by the trial court was never raised. A review of order cannot be sought by raising a new plea or even on the ground that certain points or contentions raised but were not considered by the Court. The review jurisdiction is not an appellate jurisdiction. Therefore a reviewing applicant cannot support prayer for review either by raising new contention or new points or on the plea that certain arguments were not made or even that they were not properly considered.
5.2 The sine qua non for exercise of review jurisdiction is that there must be an error apparent on face of record of the judgment or order. The "error apparent on face of record" means, as explained by the Supreme Court in Parsion Devi Vs Sumitri Devi [(1997) 8 SCC 715] an error in the judgment which is self-
Page 4 of 7C/MCA/483/2014 CAV ORDER evident and does not require a process of reasoning. The error of apparent on the face of record is distinct from an wrong decision. It therefore follows that the matter cannot be permitted to be reargued and cannot be reheard on the specious plea of detecting an error or by submitting that the judgment was erroneous. These will not fall within the ambit of the review jurisdiction. Again in Haridas Das Vs Usha Rani Banik (Smt) [(2006) 4 SCC 78] the Supreme Court held that seeking review on the ground that reviewing petitioner had not highlighted all the aspects and could have argued more forcefully were no grounds for review.
6. The scope and power of review under Order 47 Rule 1 is very much circumscribed. In a recent decision in Kamlesh Verma v. Mayawati [AIR 2013 SC 3301], the Supreme Court after considering all its earlier decisions on the point, set-out following principles:
"Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
(A)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.Page 5 of 7
C/MCA/483/2014 CAV ORDER The words "any other sufficient reason" has been interpreted in Chhajju Ram v. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius and Ors., (1955) 1 SCR 520 :
(AIR 1954 SC 526), to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese and Iron Ores Ltd. and Ors., JT 2013 (8) SC 275 : (2013 AIR SCW 2905).
(B) 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 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 arguing the main Page 6 of 7 C/MCA/483/2014 CAV ORDER matter had been negatived."
6.1 In the present case, no error apparent on the face of record could be pointed out, nor did it exist.
7. For the aforesaid reasons, there is no substance in the present Miscellaneous Civil Application and the same is dismissed.
(N.V.ANJARIA, J.) Anup Page 7 of 7