Himachal Pradesh High Court
Shyam Singh vs Joginder Singh on 18 September, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Review Petition No.65 of 2021 Reserved on: 24.08.2023 Date of Decision: 18.09.2023 .
Shyam Singh ....Petitioner.
Versus
Joginder Singh .....Respondent
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr.Romesh Verma, Sr. Advocate, of with Mr.Sumit Sharma, Advocate.
For the Respondent : Mr.B.S. Chauhan, Sr. Advocate, with Mr.Ram Kumar, Advocate.
rt Rakesh Kainthla, Judge The present petition has been filed seeking the review of the judgment and decree passed by this Court in RSA No.612 of 2007 dated 01.01.2020.
2. Briefly stated, the applicant/petitioner had preferred Regular Second Appeal before this Court, which was disposed of on 01.01.2020. The Regular Second Appeal was admitted on the following substantial questions of law:
1. Whether the Courts below have failed to appoint Local Commissioner, in order to determine boundary dispute between the parties despite the fact that application under Order 26, Rule 9 C.P. C. was filed before the learned Trial Court?1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 18/09/2023 20:35:06 :::CIS 22. Whether the demarcation report Ex.PW3/A which was prepared as per instructions of the Hon'ble Financial Commissioner, Himachal Pradesh has been wrongly brushed aside and disbelieved?
3. This Court held that the plaintiff had pleaded .
interference with his possession over Khasra No.164. There was no plea that the defendant had encroached on the suit land. In the absence of any pleading of encroachment, the Local Commissioner was not required to be appointed. The fact, which of was not pleaded could not be proved by leading the evidence. No amount of proof can substitute the pleadings; hence, the rt substantial question of law was answered by holding that when the encroachment was not pleaded, there was no illegality in not appointing the Local Commissioner. The Local Commissioner had himself stated that he had prepared the demarcation report in violation of the instructions of the Financial Commissioner and substantial question of law no.2 was answered in view of the admission made by the Local Commissioner.
4. The applicant/petitioner has filed the present review petition asserting that he had filed an application under Order 26 Rule 9 of CPC on 2.12.2006 asserting that the demarcation was conducted by the then Field Kanungo Devender Singh Gangta (PW-3) during the pendency of the suit. It was found ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 3 encroachment to the extent of 0-00-17 hectares in Khasra No.164. The defendant had also agreed to vacate the possession;
however, this report was rejected by the Court in view of the .
admission made by the Local Commissioner that the demarcation was not conducted, as per the instructions issued by the Financial Commissioner. The applicant filed an application for the appointment of a Local Commissioner, which of was dismissed by the learned Trial Court after holding that the demarcation report of the Field Kanungo is on record and no rt new demarcation could be conducted. Relief of mandatory injunction was not granted by the Court. The plaintiff had asserted that the defendant has no right, title or interest over Khasra No.164 located adjacent to Khasra No.165 owned by the defendant. The defendant was trying to encroach upon Khasra No.164. The Field Kanoongo conducted the demarcation on 22.4.2003 and found the encroachment. There is an error apparent on the face of the record. This Court had repeatedly held that the Local Commissioner should be appointed to carry out the demarcation in case of boundary dispute. The application under Order 26 Rule 9, CPC filed before the learned Trial Court containing specific allegations of encroachment could not be brought to the notice of the Court. There are ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 4 sufficient grounds to allow this petition; hence, it was prayed that the present petition be allowed and the judgment and decree passed by this Court be reviewed.
.
5. I have heard Sh.Romesh Verma learned Senior Advocate assisted by Sh.Sumit Sharma learned counsel for the applicant/petitioner and Sh.B.S.Chauhan learned Senior Counsel assisted by Sh.Ram Kumar, learned counsel for the respondent.
of
6. Sh. Romesh Verma, learned Senior Counsel for the applicant submitted that the Court had not appointed the Local rt Commissioner after rejecting the report of demarcation. This Court has repeatedly held that a Local Commissioner should be appointed in case, the demarcation conducted by the Revenue Agency is not found to be correct. There is an error apparent on the face of the record or there is at least a sufficient reason for the review; hence, he prayed that the present application be allowed and the judgment be reviewed.
7. Sh. B.S. Chauhan, learned Senior Counsel for the respondent submitted that there is no error apparent on the face of the record. There is a distinction between the appellate power and the review power. The Court cannot sit as an appellate authority over the order passed by it while reviewing the order.
::: Downloaded on - 18/09/2023 20:35:06 :::CIS 5The pleas taken by the applicant could have been taken in the appeal but are not permissible while undertaking the review;
hence, he prayed that the present petition be dismissed.
.
8. I have given considerable thought to the rival submissions and at bar and have gone through the records carefully.
9. Order 47 Rule 1 of CPC deals with an application for of review. It reads as under:
"1. Application for review of judgment rt (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 - 18/09/2023 20:35:06 :::CIS 6
(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 of case, shall not be a ground for the review of such judgment."
10. It is apparent from the bare perusal of this Section rt 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 ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 7 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.
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:
of '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 rt 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 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 thathas 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:::: Downloaded on - 18/09/2023 20:35:06 :::CIS 8
'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:
.
'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 of state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be rt 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 ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 9 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 limited purpose and cannot be allowed to be 'an appeal in disguise''. [emphasis added] of
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 rt 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 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, ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 10
(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 of the record, or for any other sufficient reason, desires to obtain a rt review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.' Under Order 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 ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 11 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 of take a different view notwithstanding the earlier judgment.
rtXXX 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 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 ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 12 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 of 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 rt 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 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 ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 13 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 of majority of cases. But there must be cases in which even this test might break down, rt 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 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. In Kerala State Electricity Board v. Hitech Electrothermics & ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 14 Hydropower Ltd. and Others, (2005) 6 SCC 651 this 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 of within the domain of the appellate court. If on appreciation of the evidence produced, the court rt 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." (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:
'11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 15 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 of concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases. rt 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.' (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:::: Downloaded on - 18/09/2023 20:35:06 :::CIS 16
'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 the knowledge of the petitioner or could not be produced by him;
of
(ii) Mistake or error apparent on the face of the record;
rt (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 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.::: Downloaded on - 18/09/2023 20:35:06 :::CIS 17
(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 a miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard of and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a rt 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.'
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 ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 18 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:
'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 of jurisdiction to prevent miscarriage of justice or to correct grave and pulpable errors rt 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)
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 ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 19 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 of to show that such additional matter or evidence was not within its knowledge and even after the rt 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 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 ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 20 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 of 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 rt 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. 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 ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 21 implication. No provision in the Act was brought to notice from which it could be gathered that the Government 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 of 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 rt 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, ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 22 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 of 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 rt Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Others(supra)."
11. Similarly, it was held 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 ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 23 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 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 of 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:
rt "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:
::: Downloaded on - 18/09/2023 20:35:06 :::CIS 24"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 discussion of the rival contentions shows the alleged error in the present of 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 rt 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.
::: Downloaded on - 18/09/2023 20:35:06 :::CIS 2512. 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 of (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. rt (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 ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 26 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"
of
12. It was held in S. Murali Sundaram v. Jothibai Kannan, 2023 SCC OnLine SC 185 that the power of review is not rt equivalent to an Appellate Court. The Court cannot sit in appeal while considering the review application. It was observed:
"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 ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 27 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 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 rt 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 neminem gravabit.'
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 ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 28 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 of 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 rt 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 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.
::: Downloaded on - 18/09/2023 20:35:06 :::CIS 2920. 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.
of Furthermore, the Court proceeded on the basis that S.M. Gajendran had executed a gift deed rtwithout 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 ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 30 powers under Order 47 Rule 1 CPC. An 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."
13. 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 of 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 rt 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."
14. Thus, the power of review can only be exercised if there is an error apparent on the face of the record. The error should be self-evident and cannot be discovered by a long process of reasoning.
15. It was submitted that the Court has the power to review its order if sufficient reason is made out. It was laid down ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 31 by the Judicial Committee of the Privy Council in Chhajju Ram v.
Neki, 1922 SCC OnLine PC 11 : (1921-22) 26 CWN 697 : (1921-22) 49 IA 144 : (1922) 16 LW 37: AIR 1922 PC 112 : (1922) 43 Mad LJ 332:
.
ILR (1922) 3 Lah 127 that the sufficient reason would be analogous to the two already specified namely excusable failure to bring new and important matter to the notice of the Court or error apparent to the fact of the record. It was observed:
of If their Lordships felt themselves at liberty to construe the language of Or. 47 of the Code of Civil Procedure, 1908 without reference to its history and rt the decisions upon it, their task would not appear to be a difficult one. For it is obvious that the Code contemplates procedure by way of review by the Court which has already given judgment as being different from that by way of appeal to a Court of Appeal. The three cases in which alone mere review is permitted are those of new material overlooked by excusable misfortune, mistake or error apparent on the face of the record, or "any other sufficient reason." The first two alternatives do not apply in the present case, and the expression "sufficient," if this were all, would naturally be read as meaning sufficiency of a kind analogous to the two already specified, that is to say, to excusable failure to bring to the notice of the Court new and important matters, or error on the face of the record. But before adopting this restricted construction of the expression "sufficient," it is necessary to have in mind in the first place, that the provision as to review was not introduced into the Code for the first time in 1908, but appears there as a modification of previous provision made in earlier legislation: and, in the ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 32 second place, that the extent of the power of a Court in India to review its decree under successive forms of legislative provision has been the subject of a good deal of judicial interpretation, not, however, in all cases harmonious. That, the power given by the .
Indian Code is different from the very restricted power which exists in England appears plain from the decision in Charles Bright and Co. v. Seller [[1904] 1 K.B. 6.], where the Court of Appeal discussed the history of the procedure in England and explained its limits. Turning first to the earlier forms assumed in Indian of legislation on the matter in question, their Lordships observe that the Bengal Reg. XXVI, of 1814, by sec. 2, confers on the Courts there mentioned a power of rt review analogous to that under consideration, excepting that the expression "otherwise requisite for the ends of justice" is added, an expression which may have been regarded as enlarging the scope of the word "sufficient," used as it was in much the same way as in the present Code. The expression "requisite for the ends of justice" is again introduced in sec. 8 of the Code of Civil Procedure of 1859. But in the Code of 1877, the language is varied, and the law is enacted in substantially the more restricted words in which it is enacted in the Code of 1908. Upon the construction of the language used from time to time by the legislature, there has been much divergence of judicial opinion. For example, even on the wider words in the Code of 1859, the High Court at Calcutta in the case of Roy Meghraj v. Beejoy Gobind Burral [I.L.R. 1 Cal. 197: s.c. 23 W.R. 438 (1875).] adopted the restricted construction, and laid down emphatically that there could be no re-hearing for the purpose of seeing whether a different conclusion on the merits should be adopted. On the other hand, in Nussecrooddeen Khan v. Indurnarain Choudhry [5 W.R. 93 (F.B.) (1866).] the majority of the Court ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 33 appears to have considered that the wider meaning should be attributed to the language. Their Lordships have examined numerous authorities, and they have found much conflict of judicial opinion on the point referred to. There is .
plainly no such preponderance of view in either direction as to render it clear that there is any settled course of decision which they are under obligation to follow. Some of the decisions in the earlier cases may have been influenced by the wider form of expression then in force, and these decisions may have had weight with the learned Judges who, in cases turning of on the subsequent Code, had regarded the intention of the legislature as remaining unaltered. But their Lordships are unable to assume that the language rt used in the Codes of 1877 and 1908 is intended to leave open the questions which were raised on the language used in the earlier legislation. They think that r. 1 of Or. XLVII must be read as in itself definitive of the limits within which review is today permitted, and that reference to practice under former and different statutes is misleading. So construing it they interpret the words "any other sufficient reason" as meaning a reason sufficient on grounds at least analogous to those specified immediately previously. Such an interpretation excludes from the power of review conferred the course taken by the second and third Division Bench, composed of Wilberforce, J., and Scott Smith, J., and by Wilberforce, J., and LeRossignol, J., respectively. The result is that the judgments given by these two Division Benches ought to be set aside, and that of the Bench of the Chief Court composed of Scott Smith, J., and Leslie Jones, J. restored so that the suit will stand dismissed. The Respondent-Plaintiffs must pay the costs here and in the Courts below."::: Downloaded on - 18/09/2023 20:35:06 :::CIS 34
16. The present petition has to be decided keeping in view the above parameters in mind.
17. The Court had proceeded on the premise that since .
no averments regarding the encroachment was made in the plaint; therefore, it is not permissible to look into any evidence led by the applicant to prove the encroachment as any evidence beyond pleadings cannot be looked into. There is no error in this of proposition of law. It was laid down by the Judicial Committee of Privy Council in Siddik Mahomed Shah v. Saran, 1929 SCC OnLine rt PC 79: AIR 1930 PC 57 (1) : (1930) 58 Mad LJ 7: PLR (1930) 31 PC 150 (1) that where no claim was made in the written statement, no evidence can be looked into to establish the plea. It was observed:
"A certain Hote Khan is alleged by the appellant, who is in possession of certain lands which belonged to Hote Khan to have given these lands to him. That story is not accepted, and there are concurrent findings as to the fact by both Courts. After Hote Khan's death, there was a transference of the lands in question by mutation of names effected upon the application of Hote Khan's widow. The Judicial Commissioners think it very probable that Hote Khan's widow being an ignorant person and with no one to help her, transferred the lands in that way in order that her spiritual adviser might hold them as trustees. The spiritual adviser, who is the appellant wishes to keep them first upon the ground already ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 35 specified which their Lordships have already disposed of and, secondly upon the ground that it was a gift made by the widow herself but that claim was never made in the defence presented and the learned Judicial Commissioners therefore, very truly .
find that no amount of evidence can be looked into upon a plea which was never put forward. The result is that their Lordships will humbly advise His Majesty that the appeal should be dismissed. As the respondents have not appeared, there will be no order as to costs. (Emphasis supplied)
18. Similarly, it was laid down by the Hon'ble Supreme of Court in Duggi Veera Venkata Gopala Satyanarayana v. Sakala Veera Raghavaiah, (1987) 1 SCC 254 that where the landlord had rt failed to plead that he bona fide requires the accommodation and has no other reasonable suitable accommodation, no amount of evidence led to support this fact can be looked into. It was held:
6. There can be no doubt that under the law of pleadings facts mentioned in sub-clause (iii) are to be pleaded in the petition and thereafter proved at the trial for the purpose of an order of eviction against the tenant. In a decision of this Court in Hasmat Rai v. Raghunath Prasad (1981) 3 SCC 103, 109: AIR 1981 SC 1711 : (1981) 3 SCR 605 it has been observed by Desai, J. that in order to obtain an order of eviction of a tenant under Section 12(1)(f) of Madhya Pradesh Accommodation Control Act, 1961, the landlord has to plead and establish (i) that he bona fide requires the accommodation let to the tenant for non-residential purposes for the purpose of continuing or starting his business; and (ii) that he ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 36 has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or the town concerned. Further, it has been observed that any amount of proof offered without appropriate pleading is generally of no relevance. We .
respectfully agree with the above statement of law and reiterate the same. We are, however, not inclined to interfere with the impugned order of eviction in the instant case for the reasons stated hereinafter.
19. This position was reiterated in Janak Dulari Devi v.
Kapildeo Rai, (2011) 6 SCC 555 : (2011) 3 SCC (Civ) 432: 2011 SCC of OnLine SC 639, wherein it was observed:
9. The first appellate court after analysing the rt evidence held that the evidence was contrary to the pleadings and therefore liable to be rejected. When what is pleaded is not proved, or what is stated in the evidence is contrary to the pleadings, the dictum that no amount of evidence, contrary to the pleadings, howsoever cogent, can be relied on, would apply. The first appellate court also found that there was no endorsement in the sale deed by the Sub-Registrar about payment of Rs. 17,000 in his presence, nor did any separate receipt exist to show the payment of Rs.
17,000 prior to the preparation and the execution of the sale deed.
20. Similarly, it was held in Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491 : (2009) 5 SCC (Civ) 927: 2008 SCC OnLine SC 1445 that the object of the pleading is to ensure that the litigants come to trial without issues clearly defined and the cases being expanded during the trial. No relief can be granted on a plea, which was never put forward. It was observed:
::: Downloaded on - 18/09/2023 20:35:06 :::CIS 3710. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules .
breached are:
(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subjectmatter of an issue, cannot be decided by the court.
(ii) A court cannot make out a case not pleaded.
of The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not rt flow from the facts and the cause of action alleged in the plaint.
(iii) A factual issue cannot be raised or considered for the first time in a second appeal.
11. The Civil Procedure Code is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that many a time, fulfilment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation should not be a ground to flout the settled fundamental rules of civil procedure. Be that as it may. We will briefly set out the reasons for the aforesaid conclusions.
12. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during the trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 38 issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties .
and to prevent any deviation from the course which litigation on particular causes must take.
13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, of are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a rt result, the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief.
Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to a miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief."
21. Therefore, in view of the binding precedent, there is no error in the principle of law followed by this Court that no ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 39 amount of evidence can be looked into in the absence of the evidence.
22. Sh. Romesh Verma, learned Senior Counsel .
submitted that the plaintiff had asserted in the plaint that there is every likelihood of the defendant encroaching upon the suit land. The plaintiff had also sought a mandatory injunction to remove the encroachment if the same is found to have been of made over any portion of Khasra No.164. Hence, there were sufficient pleadings. This submission cannot be accepted.
rt Order-VI Rule 2 of CPC reads that every pleading shall contain a statement in a concise form of the material facts on which the party pleading relies for his claim or defence. The term 'fact' has been defined in Section 3 of the Indian Evidence Act as anything, state of things or relations of things capable of being perceived by the senses or any mental condition of which any person is conscious. Therefore, only the fact which can be perceived by the senses or a mental condition of which any person is conscious can be pleaded. It was laid down by the Hon'ble Supreme Court in Udhav Singh v. Madhav Rao Scindia, (1977) 1 SCC 511 that all the primary facts which must be proved at the trial by a party to establish the cause of action or his defence are material facts, whereas, material particulars are the details ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 40 which are necessary to amplify, refine and embellish the material facts already pleaded in the petition. It was observed:
41. Like the Code of Civil Procedure, this section also .
envisages a distinction between "material facts" and "material particulars". Clause (a) of sub-section (1) corresponds to Order 6 Rule 2, while clause (b) is analogous to Order 6 Rules 4 and 6 of the Code. The distinction between "material facts" and "material particulars" is important because different consequences may flow from a deficiency of such of facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6 Rule rt 16 of the Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the court has the discretion to allow the petitioner to supply the required particulars even after the expiry of the limitation.
42. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are "material facts". In the context of a charge of corrupt practice, "material facts" would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an electionpetition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 41 cause of action, are "material facts" which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a).
43. "Particulars", on the other hand, are "the details .
of the case set up by the party". "Material particulars" within the contemplation of clause (b) of Section 83(1) would therefore mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a).
"Particulars" serve the purpose of finishing touches of to the basic contours of a picture already drawn, to make it full, more detailed and more informative.
44. The distinction between "material facts" and rt "material particulars" was pointed out by this Court in several cases, three of which have been cited at the Bar. It is not necessary to refer to all of them. It will be sufficient to close the discussion by extracting what A.N. Ray, J. (as he then was) said on this point in Hardwari Lal case: [SCC p. 220, para 20] "It is therefore vital that the corrupt practice charged against the respondent should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action and to give an equal and full opportunity to the respondent to meet the case and to defend the charges. Merely, alleging that the respondent obtained or procured or attempted to obtain or procure assistance are extracting words from the statute which will have no meaning unless and until facts are stated to show what that assistance is and how the prospect of election is furthered by such assistance. In the present case, it was not even alleged that the assistance obtained or procured was other than the giving of a vote. It was said ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 42 by Counsel for the respondent that because the statute did not render the giving of vote a corrupt practice the words 'any assistance' were full statement of material fact. The submission is fallacious for the simple reason .
that the manner of assistance, the measure of assistance are all various aspects of fact to clothe the petition with a cause of action which will call for an answer. Material facts are facts which if established would give the petitioner the relief asked for. If the respondent had not appeared, could the court have given a verdict of in favour of the election petitioner. The answer is in the negative because the allegations in the petition did not disclose any cause of action."
23. rt The material fact in the present case would have been that on a particular date after or before filing the suit, the defendant had encroached upon a particular portion of the suit land. The relief of possession/mandatory injunction would have been granted on the basis of those material facts, merely stating that the defendant is going to encroach upon the suit land and the mandatory injunction be granted to remove the encroachment or construction if at all the same may be found to have been made by him over the suit land is not a pleading of material fact.
24. Therefore, there is no error apparent on the face of the record in the reasoning of this Court that the plaintiff had not pleaded the encroachment as per the law, hence, any ::: Downloaded on - 18/09/2023 20:35:06 :::CIS 43 evidence led by the plaintiff could not have been looked into and the Local Commissioner could not have been appointed to determine the encroachment on the suit land.
.
25. The submission that the Court is bound to appoint a Local Commissioner to demarcate the land when the report of demarcation is rejected is not relevant to the present case. This situation would arise in those cases where a specific pleading of has been made regarding the encroachment. Therefore, there is no error on the part of the Court in not resorting to this principle rt in the present case.
Final Order
26. No other error was pointed out.
27. Therefore, there is no reason to review the judgment passed by this Court, hence, the present Review Petition fails and the same is dismissed.
28. Pending miscellaneous applications, if any, shall also stand disposed of.
(Rakesh Kainthla) Judge 18th September, 2023 (pathania) ::: Downloaded on - 18/09/2023 20:35:06 :::CIS