Allahabad High Court
Union Bank Of India vs Additional District Magistrate, ... on 30 May, 2023
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla, Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:120330-DB AFR Judgment Reserved on 17.03.2023 Judgment Delivered on 30.05.2023 Court No. - 45 Case :- CIVIL MISC REVIEW APPLICATION No. - 293 of 2021 Applicant :- Union Bank Of India Opposite Party :- Additional District Magistrate, Meerut And 2 Others Counsel for Applicant :- Suresh Chandra Pandey Counsel for Opposite Party :- C.S.C. Hon'ble Vivek Kumar Birla,J.
Hon'ble Prakash Padia,J.
Order on Civil Misc. Delay Condonation Application:-
1. Heard.
2. Cause shown for the delay in filing the restoration application is sufficient. The delay is condoned.
3. The application is allowed.
Order on Civil Misc. Review Application:-
1. Heard Shri Saurabh Pandey, Advocate holding brief of Shri Suresh Chandra Pandey, learned counsel for the review-applicant and Shri Anjani Kumar Chaurasiya, learned counsel for the opposite party.
2. The present review application has been filed seeking review of the judgment and order dated 19.04.2021 passed in Civil Misc. Writ Petition No. 9803 of 2021 (Union Bank of India vs. Additional District Magistrate, Meerut and 2 others).
3. Facts in brief in the present case are that the writ petition in question was filed by the petitioner challenging the decision taken by the Additional District Magistrate (Finance & Revenue), Meerut dated 30.10.2019 by which the application filed by the Bank under sub-section 1 of Section 14 of the SARFAESI Act, 2002 seeking physical possession of the property was rejected.
4. After hearing counsel for the parties, the writ petition filed by the petitioner was dismissed by this Court vide its judgment and order dated 19.04.2021 on the ground of availability of statutory alternative remedy to the petitioner as provided under Section 17 of SARFAESI Act, 2002 before the Debt Recovery Tribunal. The order passed by the Writ Court dated 19.04.2021 is reads as follows:-
"The matter is taken up through Video Conferencing.
Sri Suresh Chandra Pandey, learned counsel appears on behalf of petitioner.
Learned Standing Counsel appears on behalf of respondent no.1.
Challenge in this petition is to order dated 30.11.2019 passed by Additional District Magistrate (Finance and Revenue) under Section 14 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002.
In the case of United Bank of India v. Satyawati Tandon and Others, (2010) 8 SCC 110 wherein in paragraph 42 and 43 it is held:
"42. There is another reason why the impugned order should be set aside. If respondent No.1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression `any person' used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.
43.Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute."
In view of the law laid down by the Supreme Court the petitioner has a remedy against the said order under Section 17 of the SARFAESI Act before the Debt Recovery Tribunal, therefore, we are not inclined to cause any indulgence.
Consequently, petition is dismissed with the liberty to petitioner to seek redressal of his grievance before Debt Recovery Tribunal. "
5. In order to review the aforesaid final judgment dated 19.04.2021 as quoted above, various grounds are taken in the present review application. The basic ground which is taken and argued before us is that the alternative remedy under Section 17 of the Act, 2002 is available only for the borrower, guarantor, lessee, tenant but not to the secured creditor. It is further argued that the judgment delivered by the Hon'ble Apex Court in the case of Satyamati Tandon (Supra), relied upon while dismissing the writ petition would have no bearing on the preset case as the same deals and operate on a very distinct field, i.e., to safeguard the interest of the financial institution. It is further argued that the order dated 19.04.2021 rejecting the writ petition suffers from a mistake which is patent, manifest and self-evident. It is further argued that alternative remedy is not a complete bar to the jurisdiction of this Court, if the proceedings challenged are wholly without jurisdiction.
6. Before proceeding further it would be appropriate to take note of Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred as the CPC) as well as scope of the review as per the settled law.
7. The grounds available for filing a review application against a judgment have been set out in Order XLVII of the Code of Civil Procedure in the following words:
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.
(2) A party who is not appealing from a decree or 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. A glance at the aforesaid provisions makes it clear that a review application would be maintainable on
(i) discovery of new and important matters or evidence which, after exercise of due diligence, were not within the knowledge of the applicant or could not be produced by him when the decree was passed or the order made;
(ii) on account of some mistake or error apparent on the face of the record; or
(iii) for any other sufficient reason.
9. Privy Council in the case of Chajju Ram vs. Neki AIR 1922 P.C. 112; Bisheshwar Pratap Sahi vs. Parath Nath AIR 1934 P.C. 213; held that there cannot be a review on the ground that the judgment proceeded on an incorrect exposition of law. Further, the Court has no jurisdiction to review because it was of the opinion that a different conclusion of law should have been arrived at. It was also observed that if a decision is erroneous in law that is not a ground for ordering review. If a court has decided a point erroneously, the error could not be one apparent on the face of the record or even analogous to it. Therefore, subsequent events or the fact that the Court took a different view in a subsequent case is not a sufficient reason for granting review (vide Explanation to Order XLVII Rule 1 CPC). "
10. What can be said to be an error apparent on the face of the proceedings has been dealt with and considered by the Hon'ble Apex Court in the case of T.C. Basappa vs. T.Nagappa, AIR 1954 SC 440. It is held that such an error is an error which is a patent error and not a mere wrong decision.
11. In the case of Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 SC 233, it is observed as under:
"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? 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."
12. In Patel Narshi Thakershi and Ors. v. Shri Pradyuman Singhji Arjunsinghji (1971) 3 SCC 844, the Hon'ble Apex Court held as follows:
4..... It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to notice from which it could be gathered that the Government had 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.......
13. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (1979) 4 SCC 389, the Hon'ble Apex 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 home- stead. The said appeal was allowed by the Hon'ble Apex Court with the following observations:
3...It is true as observed by this Court in Shivdeo Singh and Ors. 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 pulpable 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)
14. In Col. Avatar Singh Sekhon v. Union of India and Ors. 1980 Supp SCC 562, the Hon'ble Apex 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 miscarriage of justice or undermine its soundness. The observations made are as under:
12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante and Anr. v. Sheikh Habib (1975) 1 SCC 674 the Hon'ble Apex 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 review of an earlier order which has the normal feature of finality.
(emphasis added)
15. In S. Nagaraj and Ors. v. State of Karnataka and Anr. 1993 Supp (4) SCC 595, the Hon'ble Apex 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. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and 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.
16. 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 the Honb'le Apex 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 Code of Civil Procedure.
9. Under Order 47 Rule 1 Code of Civil Procedure 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 Code of Civil Procedure. In exercise of this jurisdiction Under Order 47 Rule 1 Code of Civil Procedure it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered has a limited purpose and cannot be allowed to be 'an appeal in disguise'.
[emphasis added]
17. In Parsion Devi and Ors. v. Sumitri Devi and Ors.:(1997) 8 SCC 715, stating that an error that is not self-evident and the 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, the Honb'le Apex 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 Code of Civil Procedure. In Thungabhadra Industries Ltd. v. Govt. of A.P., 1964 SCR (5) 174 the Honb'le Apex Court opined:
11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve 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."
18. 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 Hon'ble Supreme Court to review its judgments and in the course of discussing the contours of review jurisdiction Under Order XLVII Rule 1 of the Code of Civil Procedure in Lily Thomas vs. Union of India reported in (2000) 6 SC 224, the Hon'ble Apex 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 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:
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 XL of the Hon'ble 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. 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. 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 Code of Civil Procedure" 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 the Hon'ble Apex Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad : AIR 1955 SC 233, it was held:
It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error, cease to be 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 Boroug 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 Code of Civil Procedure for reviewing the judgment in Sarla Mudgal case6. The petition is misconceived and bereft of any substance.
(emphasis added)
19. It is also settled law that in 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. In Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. and Ors. (2005) 6 SCC 651, the Hon'ble Apex Court observed as follows:
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. 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.
20. Under the garb of filing a review application, 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 Hon'ble Supreme Court to correct errors committed by a subordinate Court. This point has been elucidated by the Hon'ble Supreme Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd. : (2006) 5 SCC 501 where it was held thus:
11. So far as the grievance of the applicant on merits is concerned, the learned Counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not 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.
21. In State of West Bengal and Ors. v. Kamal Sengupta and Anr. (2008) 8 SCC 612, the Hon'ble Apex 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:
"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, 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.
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 Code of Civil Procedure or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision."
22. After discussing a series of decisions on review jurisdiction in Kamlesh Verma v. Mayawati and Ors. (2013) 8 SCC 320, the Hon'ble Supreme Court observed that review proceedings have to be strictly confined to the scope and ambit of Order XLVII Rule 1, Code of Civil Procedure. As long as the point sought to be raised in the review application has already been dealt with and answered, parties are not entitled to challenge the impugned judgment only because an alternative view is possible. The principles for exercising review jurisdiction were succinctly summarized in the captioned case as below:
20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:
(I) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within 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 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius 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. Sundur Manganese & Iron Ores Ltd.
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 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 matter had been negatived.
23. In Ram Sahu (Dead) Through LRs and Ors. v. Vinod Kumar Rawat and Ors., 2020 SCC Online SC 896, citing previous decisions and expounding on the scope and ambit of Section 114 read with Order XLVII Rule 1, the Hon'ble Apex Court has observed that Section 114 Code of Civil Procedure 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 Code of Civil Procedure. 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.
24. Very recently in the case of S. Madhusudhan Reddy vs. V. Narayana Reddy and others repored in 2022 SCC OnLine SC 1034, it was again held by the Hon'ble Apex Court that the courts 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 error apparent on the face on record but an error that to be detected by process of reasoning cannot be prescribed on the face of the record. Paragraph-31 of the aforesaid judgment is reproduced below:-
"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 Rule 1 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 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 Ram17 and Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius18)."
25. The same principle has been reiterated by the Hon'ble Apex Court in the case of Govt. of NCT of Delhi Through the Secretary, Land and Building Department and Another vs. K.L. Rathi Steels Limited and others reported in 2023 SCC OnLine SC 288.
26. Although, the expression "for any other sufficient reason" in Order XLVII Rule 1 CPC is wide enough to take within its scope and ambit many circumstances or situations which do not fall in the earlier part of the Order XLVII Rule 1 CPC which are the two grounds (i) and (ii) referred to para 4 of this judgment, in our view, the Explanation to the said provision carves out an exception to the expression "for any other sufficient reason" as a ground for review of a judgment in ground (iii). The Explanation being in the nature of an exception is to be read outside the scope of the expression "for any other sufficient reason" in Order XLVII Rule 1 CPC. In other words, if, on a question of law, a decision of a Court is reversed by a subsequent decision of a superior Court and the same is reopened on the basis of the said subsequent decision there would be no finality of judgments of the Court even between the parties thereto. It is, hence, observed that even an erroneous judgment or order is binding on the parties thereto even if subsequently that very judgment is reversed in a subsequent decision of a superior Court. Otherwise, there would be chaos and no finality of any decision of a Court which is against public policy. Judgments rendered by a Court of competent jurisdiction as per the prevailing law are binding on the parties to the said judgment. Merely because that judgment is subsequently overruled by a subsequent decision of a superior Court in any other case, the same shall not be a ground for review of such judgment.
27. In this context, the object and purpose of the Explanation to Order XLVII Rule 1 CPC cannot be lost sight of and it needs to be emphasized. In our view, the Explanation to Order XLVII Rule 1 CPC is in the nature of an exception to the expression "for any other sufficient reason". This would mean that if, in the mind of a Court there is a sufficient reason for the review of a judgment, it cannot be on the ground/reason covered in the Explanation to Order XLVII Rule 1 CPC. Thus, the circumstances mentioned in the Explanation would be an exception and is outside the scope and ambit of "for any other sufficient reason".
28. An Explanation is at times appended to a Section to explain the object and content as well as the meaning of words contained in the Section. An Explanation may be added to include something within or to exclude something from the ambit of the main enactment or the connotation of some words occurring in it. Even a negative Explanation which excludes certain types or a category from the ambit of the Section may have the effect of showing that the category leaving aside the excepted types is included within it. An Explanation can also be added to serve as a proviso to the main Section as has been held by the Hon'ble Supreme Court in the case of Y.P. Chawla and Others vs. M.P. Tiwari and another AIR 1992 SC 1360. When an Explanation is in the nature of a proviso, it is used to remove special cases from the general provision and provide for them especially. Sometimes an Explanation is added to clarify a doubtful point of law as in the instant case the Explanation to Order XLVII Rule 1 CPC has been inserted by the amendment made in the year 1976. [Source: G.P. Singh's "Principles of Statutory Interpretation" - 15th Edition].
29. It is also in the nature of an exception intended to restrain the enacting clause to particular cases. The Explanation in the instant case being in the nature of a proviso is a qualifying or excepting provision to what is stated in Order XLVII Rule 1 CPC which state the grounds for seeking a review. Hence, the object and intendment of the proviso must be given its full effect. The object and purpose of the Explanation can be related to the following three maxims:
(i) Nemo debet bis vexari pro una et eadem causa (No man should be vexed twice for the same cause);
(ii) Interest reipublicae ut sit finis litium (It is in the interest of the State that there should be an end to a litigation); and
(iii) Res judicata pro veritate occipitur (A judicial decision must be accepted as correct).
30. These maxims would indicate that there must be an end to litigation otherwise the rights of persons would be in an endless confusion and justice would suffer.
31. At the same time, there are a line of decisions which have held that exercising power of review for "for any other sufficient reason" must be analogous to the two reasons mentioned in the provision therein, namely-
"1) 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 was made; or
2) on account of some mistake or error apparent on the face of the record."
32. Recently a Division Bench of this Court in the case of Vinod Kumar vs. State of U.P. and others reported in 2022 (11) ADJ 25 (DB), has considered the entire history and scope of Section 114 and order 47 Rule 1 of the Code of Civil Procedure and explained the scope of review.
33. As can be seen from the above exposition of law, it has been consistently held by the Hon'ble Apex 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 Rule 1 Code of Civil Procedure. 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 evidence has emerged after passing of the judgment, subject to the condition that such evidence was not within the knowledge of the party seeking review or could not be produced by it when the order was made despite undertaking an exercise of due diligence. There is a clear distinction between an erroneous decision as against an error apparent on the face of the record. An erroneous decision can be corrected by the (Hon'ble Superior Court) however an error apparent on the face of the record can only be corrected by exercising review jurisdiction.
34. Heard counsel for the parties and perused the record.
35. After hearing the counsel for the parties and going through the averments made in the review application, the Court is of the opinion that all these grounds were available to the petitioner at the time when the arguments were made in the writ petition. Nothing has been brought on record that how the present review application will fall within the ambit of Order 47 Rule 1 of the Code of Civil Procedure. A detailed discussion has already been made by us in respect of the grounds on which the review application is maintainable.
36. From perusal of the grounds contained in the review application as well as from the arguments advanced by the counsel for the petitioner, we are of the opinion that there is no error apparent on the face of record to review in the guise of exercising powers of review, the Court can correct the mistake but not substitute the view taken earlier merely because there is a possibility of taking two views in the matter. As quoted above, it has already been held by the privy counsel in the case of Chajju Ram (Supra), way back more than 100 years ago which was subsequently followed by the Hon'ble Apex Court as well as by the different High Court till date that there cannot be a review on the ground that the judgment proceeded on an incorrect exposition of law.
37. One relevant fact which should have been pointed out by the counsel for the applicant, though on record however not mentioned is that the applicant has earlier filed a Review Application No.168 of 2021, on the same grounds, for review of judgment dated 19.04.2021 passed in Writ Petition No. 9803 of 2021, which has been dismissed by this Court by the order dated 09.09.2021, which is as under:-
"By means of this application, the applicant-petitioner has prayed for review of the order dated 19.4.2021 passed by this Court.
The review application is not in consonance with Order 47 Rule 1 of Code of Civil Procedure.
The review application is highly misconceived.
It is accordingly rejected. "
38. Thus, it is clear that no liberty was granted to the applicant to file fresh review application on the same grounds. Hence, the second review application on the same grounds is not maintainable. Law in this connection is well settled that successive review application against the original judgement is not maintainable.
39. The Hon'ble Apex Court in the case of Common Cause A Regd. Society Vs. Union of India and another reported in (2003) 10 SCC 264 held as follows:-
"After delivering of the judgment in a writ petition filed under Article 32, a review petition had been filed, and that review petition had been entertained and finally disposed of. The present application purports to be a review petition against the reviewed judgment. This application is wholly misconceived and there is no provision anywhere to file successive review petitions. The review petition is accordingly dismissed."
40. The same view was again taken by the Hon'ble Supreme Court in the case of M. Satyanaryan Murthy and others Vs. Mandal Revenue Officer Cum Land Acquisition Officer, reported in (1998) 7 SCC 445. It was held by the Hon'ble Supreme Court in this case that second review application against the same order is not maintainable and amounts to abuse of process of law, more so when no satisfactory explanation was given. While dismissing the aforesaid review application a cost of Rs.5000/- was also imposed by the Hon'ble Apex Court in this case. The order passed by the Hon'ble Supreme Court in the aforesaid case reproduced below:-
"There is a delay of 2 years and 32] days in filing this review petition. The explanation for the delay contained in the application seeking condonation of delay is wholly unsatisfactory and not at all reasonable. Besides, we also find that the petitioners had filed earlier also a Review f Petition No, 214 of 1995 against the same order which was dismissed by this Court on 22-2-1995. Both in the memorandum of the review petition and in the application seeking condonation of delay, though this fact is mentioned, but the number of the review petition has been left blank and so also the date on which the same was dismissed. This shows the casual manner in which this second review petition has been filed. Recourse to successive review petitions against the same order is not permissible more so because no error g apparent on the record has been brought out. It appears to us that the petitioners are unnecessarily taking liberties. The filing of the second review petition is an abuse of the process of the court. We, therefore, dismiss this review petition both on the ground of unexplained inordinate delay and on merits with Rs 5000 as costs. The directions with regard to disbursement of the costs shall be issued after the same are deposited in the Registry."
41. The same view has again taken by the Hon'ble Supreme Court in the case of S. Madhusudhan Reddy Vs. V. Narayana Reddy and others reported in 2022 SCC Online SC 1034. In paragraph 35 of the aforesaid judgement it was held that recourse to successive review application against the same order is impermissible, more so when the respondents have miserably failed to draw the attention of this Court to any circumstances that would entitle them to invoke review jurisdiction within the ambit of the Rules. In paragraph 36 of the aforesaid judgement it was held that second set of review applications were nothing short of an abuse of the process of the court and ought to have been rejected by the High Court as not maintainable. The paragraph Nos.35 and 36 are reproduced below:-
35. In our opinion, even otherwise, recourse to successive review petitions against the same order is impermissible more so, when the Respondents have miserably failed to draw the attention of this Court to any circumstances that would entitle them to invoke review jurisdiction within the ambit of the Rules. Under the rules, the Respondents were not required to produce "genuine" documents but new documents/evidence that was not within their knowledge and could not have been so even after exercise of due diligence, which could have turned the tables in their favour. Nor has any error apparent on the face of the record been brought out by them.
36. Thereafter an application for review was made on 3-4-1979. If there was some error apparent in the order dated 21-3-1979 surely the same should have been pointed out In the first review application which was made on 3-4-1979, but in fact, the petitioner has claimed a right to move successive review applications. 4. Such a right cannot be allowed to him. Barlier the review application was rejected by the trial court then the petitioner filed an infructuous revision, thereafter, he filed a writ petition and lastly be filed the instant second review application.
42. Apart from the same, this Court also in the case of Irtaza Ali Vs. The District Judge Moradabad and others reported in (1982) 2 ARC 514 held that successive review applications are not maintainable even though the earlier review application was dismissed as infructuous. The relevant paragraph is reproduced below:-
"Thereafter an application for review was made on 3-4-1979. If there was some error apparent in the order dated 21-3-1979 surely the same should have been pointed out In the first review application which was made on 3-4-1979, but in fact, the petitioner has claimed a right to move successive review applications.
4. Such a right cannot be allowed to him. Barlier the review application was rejected by the trial court then the petitioner filed an infructuous revision, thereafter, he filed a writ petition and lastly be filed the instant second review application."Hence the second review petition is not maintainable on the same ground.
43. In this view of the matter, we are of the firm opinion that the present review application filed by the petitioner is being the second review application is not maintainable. The review application has been filed to misuse the process of law and process of Court, hence the same is liable to be dismissed with exemplary costs.
44. In view of the above discussion made hereinabove, the present review application is dismissed on merits as review proceedings cannot be equated with the original hearing and a review is by no means as appeal in disguise whereby an alleged erroneous decision is reheard and corrected.
45. Present review application being second review application for the same cause of action is rejected on the ground of maintainability as well.
46. Accordingly, this review application stands rejected with a cost of Rs. 50,000/(Rs. Fifty Thousand), which the applicant shall deposit with the Registrar General of this Court within a period of one month from today. On deposit of such cost, it shall be transmitted to the account of 'High Court Legal Services Committee, Allahabad'.
Order Date :- 30.05.2023 Swati