Karnataka High Court
Mohammad Akbar S/O Abdul Khasim Shaikh vs Krishna S/O. Shankar Mirjankar on 18 February, 2025
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NC: 2025:KHC-D:3260
RP No. 100088 of 2014
C/W RP No. 100119 of 2014
RP No. 100124 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 18TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REVIEW PETITION NO. 100088 OF 2014 (-)
C/W
REVIEW PETITION NO. 100119 OF 2014
REVIEW PETITION NO. 100124 OF 2014
IN RP NO.100088/2014
BETWEEN:
MOHAMMAD AKBAR ABDUL KHASIM SHAIKH
AGE: 70 YEARS, OCC: BUSINESS,
R/O. KUMTA, DIST: KARWAR.
...PETITIONER
Digitally (BY SRI. SHIVARAJ P. MUDHOL, ADVOCATE)
signed by
VN
BADIGER
Location: AND:
High
Court of
Karnataka,
Dharwad
KANNE W/O. SHANKAR AMBIGA
Bench SINCE DECEASED BY HER LRS
RAMA S/O. SHANKAR AMBIGA
SINCE DEAD BY HIS LRS
1a. SMT. SEET W/O. RAMA AMBIGA
AGE: 56 YEARS, OCC: HOUSE HOLD WORK
R/O. OLD FISH MARKET ROAD,
NEAR KDCC BANK, KUMATA
TALUK: KUMATA,
DIST: UTTAR KANNADA.
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NC: 2025:KHC-D:3260
RP No. 100088 of 2014
C/W RP No. 100119 of 2014
RP No. 100124 of 2014
1b. SANTOSH S/O. RAMA AMBIGA
AGE: 56 YEARS, OCC: SERVICE,
R/O. OLD FISH MARKET ROAD,
NEAR KDCC BANK, KUMATA,
TALUK: KUMATA,
DIST: UTTAR KANNADA.
1c. SANJEEV S/O. RAMA AMBIGA
AGE: 35 YEARS, OCC: PRIVATE WORK,
R/O. OLD FISH MARKET ROAD,
NEAR KDCC BANK, KUMATA,
TALUK: KUMATA,
DIST: UTTAR KANNADA.
1d. SANDESH S/O. RAMA AMBIGA,
AGE: 28 YEARS, OCC: SERVICE,
R/O. OLD FISH MARKET ROAD,
NEAR KDCC BANK, KUMATA,
TALUK: KUMATA,
DIST: UTTAR KANNADA.
1e. SANTOSH S/O. RAMA AMBIGA,
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O. OLD FISH MARKET ROAD,
NEAR KDCC BANK, KUMATA,
TALUK: KUMATA,
DIST: UTTAR KANNADA.
...RESPONDENTS
(BY SRI. SANGRAM S. KULKARNI, ADVOCATE FOR R1(A-E) THIS RP IS FILED UNDER ORDER 47 RULE OF 1 OF CIVIL PROCEDURE CODE, PRAYING TO REVIEW THE ORDER DATED 11.02.2014 IN R.S.A.NO.553/2003 AND TO RESTORE THE APPEAL IN ITS ORIGINAL FILE BY ALLOWING THIS PETITION, IN THE INTEREST OF JUSTICE AND EQUITY.
IN RP NO. 100119/2014BETWEEN:
VASANTALATA KOM VIMALANAND MIRJANKAR, AGE: 91 YEARS, OCC: HOUSEHOLD WORK and PETROL DISTRIBUTION BUSINESS, -3- NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 R/O. PANDURANGASHRAMA COLONY, MALLAWSHWARAM, BENGALURU, KARNATAKA STATE, R/BY G.P.A HOLDER SRI. NIKIL UBHAYAKAR, AGE: 63 YEARS, R/O: PANDURANGASHRAMA COLONY, MALLAWSHWARAM, BENGALURU, KARNATAKA STATE.
...PETITIONER (BY SRI. S.P. SHANKAR, SR. COUNSEL FOR SRI. HARSH DESAI, ADVOCATE) AND:
1. KRISHNA SHANKAR MIRJNKAR, AGE: 83 YEARS, OCC: RETIRED OFFICER, R/O. KUMTA AND 111/11 THARAT COLONY, PRABHAT ROAD, PUNE, MAHARASHTRA SINCE DECEASED BY LRS., 1A. MRS. DEEPA MAVINKURVE, "MORESHWAR", PLOT-19, BALAJI PARK, AUNDH, PUNE - 411007.
1B. MRS. JYOTI MAYENKAR 1920, SPRINGTREE, DR. MARYLAND HEIGHTS, MO 63043, U.S.A. 1C. MR. KIRAN MIRJANAKAR 203, BEAVER GRANDEUR, 3RD FLOOR, AB IDBI BANK, BANER ROAD, AUNDH, PUNE - 411 007.
2. MOHAMMAD AKBAR ABDUL KHASIM SHAIKH, AGE: 60 YEARS, OCC: MERCHANT, R/O: KUMTA, NELLEKERI, DIST: NORTH KANARA.
3. ABDUL KHASIM ABDUL SHAIKH, AGE: 58 YEARS, OCC: MERCHANT, R/O. KUMTA, NELLEKERI, DIST: NORTH KANARA.
-4-NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014
4. MOHAN KRISHNA SHETTY AGE: 62 YEARS, OCC: CONTRACTOR, R/O. NELLIKERI, KUMTA, DIST: NORTH KANARA.
5. SADANAND K. SHETTY, AGE: 60 YEARS, OCC: CONTRACTOR, R/O. NELLIKERI, KUMTA DIST: NORTH KANARA.
6. M. V. SAVANT AGE: 57 YEARS, R/O. MIRAJANKAR COMPOUND, KUMTA, DIST: NORTH KANARA.
STATE.
7. SHAIKH AUTO GARAGE PROPRIETOR, AGE: 50 YEARS,R/O. MIRAJANKAR COMPOUND, KUMTA, DIST: NORTH KANARA.
8. RUJANE D' SOUZA AGE: 55 YEARS, R/O. MIRAJANKAR COMPOUND, KUMTA, DIST: NORTH KANARA.
9. SHAMARAM NAIK AGE: 53 YEARS, R/O. MIRAJANKAR COMPOUND, KUMTA, DIST: NORTH KANARA.
10 . RAMAKRISHNA PRINTING PRESS MANAGER, V.M.BILAGI, AGE: 55 YEARS, R/O. MIRAJANKAR COMPOUND, KUMTA, DIST: NORTH KANARA.
11 . A. F. NARONHA, AGE: 65 YEARS, R/O. MIRAJANKAR COMPOUND, KUMTA, DIST: NORTH KANARA.
12 . PROPRIETOR PRAGATI FABRICKS, SATYAVAN, N. NAIK, AGE: 49 YEARS, R/O. MIRAJANKAR COMPOUND, KUMTA, DIST: NORTH KANARA.
13 . M. C. WAZ, -5- NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 ASST. MANAGER, KUMTA URBAN BANK,AGE: 62 YEARS, R/O. MIRAJANKAR COMPOUND, KUMTA.
DIST: NORTH KANARA.
14 . SRINIVAS L ACHARRYA, GOLD SMITH, AGE: 56 YEARS, R/O. MIRAJANKAR COMPOUND, KUMTA, DIST: NORTH KANARA.
15 . KARNATAKA STATE COMMERCE AND INDUSTRIES BY ITS MANAGER, AGE: 61 YEARS, R/O. MIRAJANKAR COMPOUND, KUMTA KARWAR. DIST: NORTH KANARA.
16 . R. K. VERNEKAR, CONTRACTOR, AGE: 60 YEARS, R/O. BANAVASI ROAD, SIRSI, DIST: NORTH KANARA.
....RESPONDENTS (BY SRI. V.P. KULKARNI, ADVOCATE) THIS REVIEW PETITION IS FILED UNDER SECTION 114 R/W. ORDER 47 RULE 1 OF CPC., PRAYING TO ALLOW THE INSTANT REVIEW PETITION AND THE JUDGMENT DATED 30.01.2014 PASSED IN R.F.A. NO.1549/2003 BE SET ASIDE AND CONSEQUENTLY THE RFA 1549/2003 BE DISMISSED WITH COST.
IN RP NO.100124/2014BETWEEN:
MOHAMMAD AKBAR S/O. ABDUL KHASIM SHAIKH, AGE: 70 YEARS, OCC: MERCHANT, R/O: KUMTA, TALUK: KUMTA, DIST: UTTARKANNAD.
...PETITIONER (BY SRI. SHIVARAJ P. MUDHOL, ADVOCATE) AND:
1. KRISHNA S/O. SHANKAR MIRJANKAR, -6- NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 AGE: 86 YEARS, OCC: RETIRED OFFICER, R/O. KUMTA AND 111/11 THARAT COLONY, PRABHAT ROAD, PUNE - 411004.
SINCE DECEASED BY HIS LRS.
1A. MRS. DEEPA MAVINKURE, R/O: MORESHWAR, PLOT NO. 19, BAGALI PARK, AUNDH, PUNE, MAHARASTRA STATE.
1B. MRS. JYOTI MAYENKAR, 1920, SPRINGTREE, DR. MARYLAND HEIGHTS, MO. 63043, U.S.A. 1C. MR. KIRAN MIRJANKAR 203 BEAVER GRANDENR, 3RD FLOOR, AB IDBI BANK, BANER ROAD, AUNDH, PUNE - 411007. MAHARASTRA STATE.
2. VASANTALATA KOM.VIMALANAND MIRJANKAR, AGE: 94 YEARS, OCC: HOUSEHOLD AND PETROL DISTRIBUTION BUSINESS, R/O. PANDURANGASHARMA COLONY, MALLESHWARAM, BANGALORE.
....RESPONDENTS (BY SRI. V.P. KULKARNI, ADVOCATE) THIS RP IS FIELD UNDER ORDER 47 RULE 1 CODE OF CIVIL PROCEDURE, PRAYING TO REVIEW THE ORDER DATED NO.30.01.2014 IN R.F.A. NO.1549/2003 AND RESTORE THE APPEAL BY ALLOWING THIS PETITION IN THE INTEREST OF JUSTICE AND EQUITY.
THESE REVIEW PETITIONS HAVING BEEN HEARD AND RESERVED ON 10.02.2025 COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
-7-NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH CAV ORDER
1. In R.P.No.100088/2014, Review petitioner is assailing the judgment and decree dated 11.02.2014 in RSA No.553/2003. In R.P.No.100119/2014, Review petitioner is challenging the judgment and decree dated 30.01.2014 in RFA No.1549/2003. In R.P.No.100124/2014, Review petitioner is questioning the judgment and decree dated 30.01.2014 in RFA No.1549/2003.
2. Since these Review Petitions are arising out of the division of the property of original propositus -
Mangesh Rao and the parties to the Review Petitions claiming succession under the original propositus -
Mangesh Rao, the Review Petitions were heard together and disposed of by this common order.
3. In R.P.No.100088/2014, it is the contention of the petitioner that this Court without considering the rights of the petitioner and based on the finding rendered in RFA -8- NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 No.1549/2003, passed the impugned order without considering the grounds urged in Regular Second Appeal.
It is also stated that, an opportunity has not been extended to the petitioner to put forth his case. It is also stated in the petition that the Review petitioner has purchased the schedule property from its owner wherein the rights of the vendor has been protected by allotting share in the suit schedule property and same has been confirmed in RFA No.1549/2003 and accordingly sought for interference of the Court.
4. In R.P.No.100119/2014, it is contended in the Review Petition that this Court has not considered the judgment of the Hon'ble Supreme Court in the case of Kunhayammed and Others vs. State Of Kerala & Another reported in AIR 2000 SC 2587 with regard to implication of Section 3(2) of Hindu Women's Rights to Properties Act and therefore sought for Review of the impugned order.
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5. In R.P.No.100124/2014, the Review petitioner has contended that respondent No.3 - Abdul Khasim had purchased Item No.4 of the schedule property in Sy.No.476 Hissa No.1A1C measuring 0.14 guntas which includes the constructed portion as per the registered sale deed dated 23.10.1981. Respondent No.3 is a bonafide purchaser for valuable consideration and as the suit in O.S.No.39/1990 filed by the plaintiff has been dismissed by the Trial Court and later confirmed by the First Appellate Court and in that view of the matter the finding recorded by this Court in the impugned order is incorrect.
It is further stated that the plaintiff is not entitled for any share in the property purchased by defendant No.3. It is also stated that while passing the impugned order, this Court has ignored the scope and ambit of Section 14(1) of Hindu Succession Act1 and accordingly sought for Review of the impugned order. It is also stated in the petition that respondent Nos.2 and 3 are the bonafide purchasers and 1 Hereinafter referred to as 'Act'
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 their interest has to be safeguarded and accordingly the petitioner has sought for Review of the impugned order.
6. I have heard Sri.S.P.Shankar learned Senior counsel appearing on behalf of Sri.Harsh Desai for the petitioner in R.P.No.100119/2014 and Sri.Shivaraj P Mudhol for the petitioner in R.P.No.100088/2014 and R.P.No.100124/2014 and Sri.Sangram S Kulkarni and Sri.V.P.Kulkarni, learned counsels for the respondents.
7. Sri.S.P.Shankar learned Senior counsel for the petitioner invited attention of the Court to explanation (ii) to Section 6 of the Act and contended that the tenor of the scope of the explanation has not been considered by this Court and accordingly sought for interference of this Court.
Referring to Exs.P.34 and D.3 of the original records in O.S.No.39/1990, learned Senior counsel for the petitioner argued that as the father of the petitioner separated himself from Hindu Undivided Family by taking his due share in the family properties and therefore explanation
(ii) to Section 6 of Unamended Hindu Succession Act is
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 applicable to the facts of the case and therefore sought for interference of this Court on the ground that there is error apparent on the face of the record and same has to be rectified in this Review Petition.
8. In this regard, he refers to the judgment of the Hon'ble Supreme Court in the case of Vineeta Sharma vs. Rakesh Sharma reported in AIR 2020 SC 3717 and invited attention of the Court to para No.53 and argued that as there is error apparent on the face of the record in the impugned order ignoring the settled principles and therefore sought for interference of this Court. Learned Senior counsel further argued that this Court has committed an error in misreading the plaint averments and has given a finding in the impugned order, which was neither pleaded nor proved in the evidence and therefore sought for Review of the impugned order. It is also the submission of the learned Senior counsel for the petitioner that the jurisdiction of the Appellate Court under Section 96 of CPC is circumscribed while considering the pleadings,
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 oral and documentary evidence and any omission on the part of the Appellate Court resulting in an error apparent on record and therefore the said curable error has to be set-right in these Review Petitions.
9. In order to buttress his arguments, he refers to the judgment of the Hon'ble Supreme Court in the case of Sunita Devi vs. State Of Bihar and Others reported in 2005 (1) SCC 608 and argued that it is the compulsion of the judicial conscience that the error requires to be rectified in a manner known to law and accordingly sought for interference of this Court. In order to buttress his arguments, learned Senior counsel appearing for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of Chairman and Managing Director Central Bank of India and Others vs. Central Bank of India SC/ST Employees Welfare Association and Others reported in (2016) 13 SCC 135. It is also the submission of the learned Senior counsel for the petitioner that though Special Leave Petition(C)
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 No.12831/2014 was filed challenging order dated 30.01.2014 in RFA No.1549/2003 and the said special Leave Petition dismissed, however, same would not preclude this Court to Review the original order in RFA No.1549/2003 as the Hon'ble Supreme Court has not considered the case on merits and in this regard he refers to the judgment of the Hon'ble Supreme Court in the case of Shakuntla Devi vs. Kamla and Others reported in 2005 (5) SCC 390. Learned Senior counsel also referred to the judgment of the Supreme Court in the case of Khoday Distilleries Limited vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited reported in 2019 (4) SCC 376 and argued that as there is an error apparent on the face of the record in the impugned order passed by this Court, which is contrary to explanation (ii) to Section 6 of Hindu Succession Act and accordingly sought for interference of this Court.
10. It is also contended by the learned Senior counsel for the petitioner by referring to para No.17 of the
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 judgment in RFA no.1549/2003 that it is not the case of the parties to the effect that the said Mangesh Rao was protecting the interest of his grandson and son was also very much in the mind of Mangesh Rao and therefore sought for Review of the impugned order.
11. Sri.Shivaraj P Mudhol, learned counsel appearing for the petitioner in R.P.No.100088/2014 and R.P.No.100124/2014 argued that the rights of the purchasers of schedule property has been prejudicially affected in view of the impugned orders passed by this Court and further fair opportunity has not been extended to the petitioners herein and this Court based on the finding recorded in RFA No.1549/2003 dated 30.01.2014 allowed the appeal and therefore principles of natural justice have been curtailed and accordingly sought for interference of this Court.
12. Per contra, Sri.V.P.Kulkarni, learned counsel for the respondents refers to order dated 01.07.2014 in SLP(C) No.12831/2014 and contended that as the rights of
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 the parties have been crystallized and confirmed by the Hon'ble Supreme Court and therefore Review Petitions are not maintainable before this Court. In this regard, learned counsel for the respondents places reliance on the judgment of the Supreme Court in the case of Abbai Maligai Partnership Firm and Another vs. K. Santhakumaran and Others reported in 1998 (7) SCC 386 and argued that after the dismissal of the Special Leave Petition by the Hon'ble Supreme Court, no Review Petition could be entertained by the High Court and accordingly sought for dismissal of the Review Petitions.
13. It is also argued by the learned counsel for the respondents that the scope of review is very limited and no ground has been urged to satisfy that there is an error apparent on the face of the record and this Court is disentitled from rehearing the matter on merits in the Review Petitions and accordingly sought for dismissal of the Review Petitions.
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014
14. Sri.Sangram Kulkarni, learned counsel for respondents places reliance on the judgment of the Hon'ble Supreme Court in the case of Khoday Distilleries Limited supra and argued that the Review Petitions itself are not maintainable and requires to be dismissed on the ground that the petitioners herein have not made out a case for review.
15. Having taken note of the submission of the learned counsel appearing for the parties, this Court in RFA No.1549/2003 filed by the plaintiff in O.S.No.39/1990, interfered with the finding of fact relating to granting relief of declaration and allowed the appeal and decreed the suit as prayed for in the Trial Court.
16. I have carefully examined the impugned order passed by this Court on 30.01.2014. To understand the relationship between the parties, the genealogy of the parties is as under:
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NC: 2025:KHC-D:3260
RP No. 100088 of 2014
C/W RP No. 100119 of 2014
RP No. 100124 of 2014
Mangesh Rao
Gangabai
Shankar (son) Vimalanand (son)
Kamala Hemalatha Vasantalata (Wife)
st nd
1 wife) (2 wife) (Deft. -1 /Petitioner)
Krishna Shankar
(Respondent/Plaintiff)
Nirmala Shamala Shayla Sarala Prakash Sheela Ramarao
Seeta
17. I have also carefully examined the pleadings on record particularly in the light of the finding recorded by this Court at para No.17 of the impugned order, wherein this Court placing reliance on the judgment of the Hon'ble Supreme Court in the case of V. Tulasamma & Others vs. V. Sesha Reddi (Dead) By L. Rs reported in AIR 1977 SC 1944 considered the case of the parties on merits and accordingly disposed of the Appeal. It is also not in dispute that the judgment in RFA No.1549/2003
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 was considered by the Hon'ble Supreme Court in Special Leave Petition(C) No.12831/2014 and the Hon'ble Supreme Court dismissed the Special Leave Petition by order 01.07.2014. Review Petitions have been filed subsequent to the dismissal order passed by the Hon'ble Supreme Court, confirming the judgment and decree dated 30.01.2014 in RFA No.1549/2003.
18. Though the learned counsel appearing for the petitioners vehemently contended by referring to the finding recorded by the Trial Court and this Court in appeal, however, it is settled principles of law that this Court while exercising jurisdiction under Section 114 of CPC is disentitled from rehearing the matter on merits as an Appellate Court exercising jurisdiction under Section 96 or 100 of CPC.
19. Though the learned Senior counsel appearing for the petitioner places heavily on judgment of the Hon'ble Supreme Court in the case of Khoday Distilleries Limited supra and Vineeta Sharma supra that, the
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 doctrine of merger is not applicable to the case on hand, however, I do not find any acceptable ground to interfere with the impugned order passed by this Court. It is also well settled principle in law that jurisdiction of this Court while exercising review cannot be exercised as an inherit power nor as Appellate Court be exercised in the guise of power of review. It is also to be noted that the parties in RFA No.1549/2003 were heard in length by considering the arguments advanced by the parties therein and therefore, no interference is called for in these Review Petitions. In this regard, it is relevant to extract paragraph Nos.39 to 44 in the case of Kunhayammed & Others vs. State of Kerala and Another reported in 2000 (6) SCC 359 which reads as under:
"39. We have catalogued and dealt with all the available decisions of this Court brought to our notice on the point at issue. It is clear that as amongst the several two-Judge Bench decisions there is a conflict of opinion and needs to be set at rest. The source of power conferring binding efficacy on decisions of this Court is not uniform in all such decisions. Reference is found having been made to (i) Article 141 of the Constitution, (ii) doctrine of merger, (iii) res-judicata, and (iv) Rule of
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 discipline flowing from this Court being the highest court of the land.
40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the Court, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the apex court of the country and so on. The expression often employed by this Court while disposing of such petitions are - heard and dismissed, dismissed, dismissed as barred by time and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply its mind to the meritworthiness of the petitioners prayer seeking leave to file an appeal and having formed an opinion may say dismissed on merits. Such an order may be passed even ex-parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 of the C.P.C. or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 also the principles underlying or emerging from Order 47 Rule 1 of the C.P.C. act as guidelines) are not necessarily the same on which this court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the subject matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger.
41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.
42. "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol.LVII, pp.1067-68.)
43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 SLP stage obviously that order cannot also be affirmed at the SLP stage.
44. To sum up, our conclusions are :
(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal.
The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 can therefore be applied to the former and not to the latter.
iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
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(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 of the C.P.C."
20. The aforementioned judgment was fortified by the Hon'ble Supreme Court in Khoday Distilleries Limited supra. In the backdrop of these aspects, it is relevant to extract para No.4 of the judgment in the case of Abbai Maligai Parternship Firm supra, which reads as under:
"4. The manner in which the learned Single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the self-same order had been dismissed by this court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned single Judge at that stage is subversive of judicial discipline. The High Court was aware that SLPs against the orders dated 7.1.87 had already been dismissed by this court. The High Court, therefore, had no power or jurisdiction to review the self same order, which was the subject matter of challenge in the SLPs in this court after the challenge had failed. By passing the impugned order on 7.4.1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 the facts and circumstances of the case was an affront to the order of this Court. We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by this court, abused the process of the court and indulged in vexatious litigation. We strongly deprecate the manner in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this court. The appeals deserve to succeed on that short ground. The appeals are, consequently, allowed and the impugned order dated 7.4.1994 passed in the review petitions is hereby set aside. The respondents shall pay Rs. 10,000 as costs."
(underlined by me)
21. The aforementioned declaration was considered by the Hon'ble Supreme Court in Khoday Distilleries Limited supra at para No.16 and 24 and same is reproduced as under:
"16. Abbai Maligai Partnership Firm was a case under the Rent Control Act and the appeal came from the High Court of Madras. In an eviction petition filed by respondent Nos. 1 and 2 in the said case, the Rent Controller had ordered eviction of the appellants therein on the ground of wilful default in payment of rent as well as on the ground of bona fide requirement of the premises by respondent Nos. 1 and 2 for their own business. In appeal, the order
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 of the Rent Controller was set aside as it was found that there was a bona fide dispute with regard to the title of the property which could be decided by the Civil Court. The respondents preferred review petitions there against, which were dismissed. They approached this Court by way of special leave petitions which were also dismissed. After the dismissal of these special leave petitions, the respondents therein filed review petition in the High Court with a delay of 221 days. The High Court condoned the delay and also entertained the review petition on merits and not only allowed those review petitions but even reversed the orders made earlier in the civil revision petitions by allowing those petitions and ordering eviction of the appellant tenants. In appeal against this order passed in review and revision petitions, this Court held that the jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. Entire discussion in this behalf is contained in one paragraph, which we reproduce below:
"4. The manner in which the learned Single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the selfsame order had been dismissed by this Court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned Single Judge at that stage is subversive of judicial discipline. The High Court was aware that the SLPs against the orders dated 7-1-1987 had already been dismissed by this Court. The High Court, therefore, had no power or jurisdiction to review the selfsame order, which was the subject-matter of challenge in the SLPs in this Court after the challenge had failed.
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 By passing the impugned order on 7-4-1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case, was an affront to the order of this Court. We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by this Court, abused the process of the court and indulged in vexatious litigation. We strongly deprecate the matter in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court. The appeals deserve to succeed on that short ground. The appeals are, consequently, allowed and the impugned order dated 7-4-1994 passed in the review petitions is hereby set aside. The respondents shall pay Rs 10,000 as costs."
24. Having noted the aforesaid two judgments and particularly the fact that the earlier judgment in the case of Abbai Maligai Partnership Firm (supra) is duly taken cognisance of and explained in the latter judgment, we are of the view that there is no conflict insofar as ratio of the two cases is concerned. Moreover, Abbai Maligai Partnership Firm was decided on its peculiar facts, with no discussion on any principle of law, whereas
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 Kunhayammed (supra) is an elaborate discourse based on well accepted propositions of law which are applicable for such an issue. We are, therefore, of the view that detailed judgment in Kunhayammed (supra) lays down the correct law and there is no need to refer the cases to larger Bench, as was contended by the counsel for the appellant.
22. It is also to be noted that the dictum of Tulasamma's case is referred to the Larger Bench by the Hon'ble Supreme Court and in that view of the matter, it is relevant to cite the judgment of the Supreme Court in the case of High Court of Tripaua Through The Registrar General vs. Tirtha Sarathi Mukherjee and Others reported in AIR 2019 SC 3070, wherein para No.10 reads as under:
"10. The first question we must decide is whether we should allow the appeal on the ground that this is a case where the Review Petition was filed after the dismissal of the Special Leave Petition. No doubt, in K. Rajamouli Vs. A.V.K.N. Swamy reported in 2001 (5) SCC 37, relied upon by the petitioner, it was held that inter alia as follows:-
"4. Following the decision in the case of Kunhayammed & Ors. (supra) we are of the view that the dismissal of the special leave petition against the main judgment of
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court. The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a situation the filing of review would be an abuse of the process of the law."..............."
23. The Hon'ble Supreme Court in the case of Haridas Das vs. Smt. Usha Rani Banik and Others reported in AIR 2006 SC 1634 considered the interference of the original Court in Review Petition and para No.13 reads as under:
"13. In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit." The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XLVII which states that 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. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. This Court in M/s. Thungabhadra Industries Ltd. (in all the Appeals) v. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, [AIR 1964 1372] held as follows:
"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. Where without any elaborate argument one could point to the error and say here is a substantial point of law which states one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.""
(underlined by me)
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24. It is also to be noted that the Hon'ble Supreme Court in the case of Kamlesh Verma vs. Mayawati and Others reported in AIR 2013 SC 3301 at para No.16 held as follows:
"16. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
(A) When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., (1955) 1 SCR 520, 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 vs. Sandur Manganese & Iron Ores Ltd. & Ors., JT 2013 (8) SC 275 : (2013 AIR SCW 2905).
(B) When the review will not be maintainable:-
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
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(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."
25. Recently, the Hon'ble Supreme Court had an occasion to consider the scope of Section 114 of CPC in the case of Shri Ram Sahu (Dead) through LR's and Others vs. Vinod Kumar Rawat and Others reported in (2021) 13 SCC 1 relating to scope and ambit of the jurisdiction of the Court under Section 114 read with Order 27 Rule 1 of CPC, at para Nos.7 to 12 held as under:
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 "7. While considering the aforesaid question, the scope and ambit of the Court's power under Section 114 read with Order 47 Rule 1 CPC is required to be considered and for that few decisions of this Court are required to be referred to.
7.1 In the case of Haridas Das vs. Usha Rani Banik (Smt.) and Others, (2006) 4 SCC 78 while considering the scope and ambit of Section 114 CPC read with Order 47 Rule 1 CPC it is observed and held in paragraph 14 to 18 as under:(SCC pp 83-84) "14. In Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 it was held that:
'8. It is well settled that the 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. In connection with the limitation of the powers of the court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court, in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 speaking through Chinnappa Reddy, J. has made the following pertinent observations:
'3. .... It is true ..... there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 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.' "
15. A perusal of Order 47 Rule 1 shows that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason.
16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047, this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order 47 Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under:
'3. It is true as observed by this Court in Shivdev Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 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 powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.'
17. The judgment in Aribam case has been followed in Meera Bhanja. In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long-drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v.
Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 were also noted:
'17. .... 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. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 rule governing the powers of the superior court to issue such a writ.'
18. It is also pertinent to mention the observations of this Court in Parsion Devi v. Sumitri Devi. Relying upon the judgments in Aribam and Meera Bhanja it was observed as under:
'9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self- evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the 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'.
7.2 In Lily Thomas vs. Union of India, (2000) 6 SC 224, it is observed and held 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. It is further observed in the said decision that the words "any other sufficient reason" appearing in Order 47 Rule 1 CPC must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs Mar Poulose Athanasius.
7.3 In Inderchand Jain vs. Motilal, (2009) 14 SCC 663 in paragraphs 7 to 11 it is observed and held as under:
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 "7. Section 114 of the Code of Civil Procedure (for short "the Code") provides for a substantive power of review by a civil court and consequently by the appellate courts. The words "subject as aforesaid" occurring in Section 114 of the Code mean subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47 of the Code; Rule 1 whereof reads as under:(State of West Bengal v. Kamal Sengupta (2008) 8 SC
612) "17. The power of a civil court to review its judgment/decision is traceable in Section 114 CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC, which reads as under:
'1. Application for review of judgment.--(1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 apply for a review of judgment of the court which passed the decree or made the order.' "
8. An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar v. Rambai this Court held:
"6. The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed."
9. The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason.
10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.
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11. Review is not appeal in disguise. In Lily Thomas v. Union of India this Court held:(SC p 251, para 56) "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."
8. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. In Patel Narshi Thakershi vs. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844, this Court has held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise.
9. What can be said to be an error apparent on the face of the proceedings has been dealt with and considered by this 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. In Hari Vishnu Kamath vs. Syed Ahmad Ishaque, AIR 1955 SC 233, it is observed as under:
"23. .... 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
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 the boundary between the two classes of errors could be demarcated."
9.1 In Parsion Devi vs. Sumitri Devi, (Supra) in paragraph 7 to 9 it is observed and held as under:
7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372 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 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 characterised 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 (supra) 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.
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9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self- evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the 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".
9.2 In State of West Bengal and Others vs. Kamal Sengupta and Anr., (2008) 8 SCC 612, this Court had an occasion to consider what can be said to be "mistake or error apparent on the face of record". In para 22 to 35 it is observed and held as under:
"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 cannot sit in appeal over its judgment/decision.
23. We may now notice some of the judicial precedents in which Section 114 read with Order 47 Rule 1 CPC and/or
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 Section 22(3)(f) of the Act have been interpreted and limitations on the power of the civil court/tribunal to review its judgment/decision have been identified.
24. In Kotagiri Venkata Subbamma Rao v. Vellanki Venkatrama Rao (1993) SCC OnLine PC 12) the Privy Council interpreted Sections 206 and 623 of the Civil Procedure Code and observed:
'... Section 623 enables any of the parties to apply for a review of any decree on the discovery of new and important matter and evidence, which was not within his knowledge, or could not be produced by him at the time the decree was passed, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. It is not necessary to decide in this case whether the latter words should be confined to reasons strictly ejusdem generic with those enumerated, as was held in Roy Meghraj v. Beejoy Gobind Burral, ILR (1875) 1 Cal 197. In the opinion of Their Lordships, the ground of amendment must at any rate be something which existed at the date of the decree, and the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event."
25. In Hari Sankar Pal v. Anath Nath Mitter, 1949 FCR 36 a five-Judge Bench of the Federal Court while considering the question whether the Calcutta High Court was justified in not granting relief to non-appealing party, whose position was similar to that of the successful appellant, held:
"That a decision is erroneous in law is certainly no ground for ordering review. If the court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it.
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 When, however, the court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order 47 Rule 1, Civil Procedure Code."
26. In Moran Mar Basselios Catholicos v. Mar Poulose Athanasius (supra) this Court interpreted the provisions contained in the Travancore Code of Civil Procedure which are analogous to Order 47 Rule 1 and observed:
"32. ... Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein.
It may allow a review on three specified grounds, namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.
It has been held by the Judicial Committee that the words 'any other sufficient reason' must mean 'a reason sufficient on grounds, least analogous to those specified in the rule'."
27. In Thungabhadra Industries Ltd. v. Govt. of A.P. it was held that a review is by no means an appeal in disguise whereof an erroneous decision can be corrected.
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28. In Parsion Devi v. Sumitri Devi it was held as under:
"Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be 'reheard and corrected'. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'."
29. In Haridas Das v. Usha Rani Banik, this Court made a reference to the Explanation added to Order 47 by the Code of Civil Procedure (Amendment) Act, 1976 and held:
"13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it 'may make such order thereon as it thinks fit'. The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing 'on account of some mistake or error apparent on the face of the records or for any other sufficient reason'. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that 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. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection."
30. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this Court considered the scope of the High Courts' power to review an order passed under Article 226 of the Constitution, referred to an earlier decision in Shivdeo Singh v. State of Punjab and observed:
"3. ... It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 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 powers which may enable an appellate court to correct all manner of errors committed by the subordinate court."
31. In K. Ajit Babu v. Union of India, (1997) 6 SCC 473, it was held that even though Order 47 Rule 1 is strictly not applicable to the tribunals, the principles contained therein have to be extended to them, else there would be no limitation on the power of review and there would be no certainty or finality of a decision. A slightly different view was expressed in Gopabandhu Biswal v. Krishna Chandra Mohanty, (1998) 4 SCC 447). In that case it was held that the power of review granted to the tribunals is similar to the power of a civil court under Order 47 Rule 1.
32. In Ajit Kumar Rath v. State of Orissa, this Court reiterated that power of review vested in the Tribunal is similar to the one conferred upon a civil court and held:
"30. The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression 'any other sufficient reason' used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the Rule.
31. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment."
33. In State of Haryana v. M.P. Mohla, this Court held as under:
"27. A review petition filed by the appellants herein was not maintainable. There was no error apparent on the face of the record. The effect of a judgment may have to be considered afresh in a separate proceeding having regard to the subsequent cause of action which might have arisen but the same by itself may not be a ground for filing an application for review."
34. In Gopal Singh v. State Cadre Forest Officers' Assn., this Court held that after rejecting the original application filed by the appellant, there was no justification for the Tribunal to review its order and allow the revision of the appellant. Some of the observations made in that judgment are extracted below:
"40. The learned counsel for the State also pointed out that there was no necessity whatsoever on the part of the
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 Tribunal to review its own judgment. Even after the microscopic examination of the judgment of the Tribunal we could not find a single reason in the whole judgment as to how the review was justified and for what reasons. No apparent error on the face of the record was pointed, nor was it discussed. Thereby the Tribunal sat as an appellate authority over its own judgment. This was completely impermissible and we agree with the High Court (Sinha, J.) that the Tribunal has travelled out of its jurisdiction to write a second order in the name of reviewing its own judgment. In fact the learned counsel for the appellant did not address us on this very vital aspect."
35. The principles which can be culled out from the abovenoted judgments are:
(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1 CPC.
(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.
(iii) The expression "any other sufficient reason"
appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.
(iv) An error which is not selfevident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).
(v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
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(vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.
(vii) While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such 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/tribunal earlier."
10. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review.
11. Considered in the light of the aforesaid settled position, we find that the High Court has clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1 CPC. No ground as envisaged under Order 47 Rule 1 CPC has been made out for the purpose of reviewing the observations made in para 20. It is required to be noted and as evident from para 20, the High Court made observations in para 20 with respect to possession of the plaintiffs on appreciation of evidence on record more particularly the deposition of the plaintiff (PW1) and his witness PW2 and on appreciation of the evidence, the High Court found that the plaintiff is in actual possession of the said house. Therefore, when the observation with respect to the possession of the plaintiff were made on appreciation of evidence/material on record, it cannot be said that there was an error apparent on the face of proceedings which were required to be reviewed in exercise of powers under Order 47 Rule 1 CPC. At this stage, it is required to be noted that even High Court while making observations in para 20 with respect to plaintiff in possession also took note of the fact that the defendant nos. 1 and 2 - respondents herein themselves filed an application being I.A. No.1267 of 2012 which was filed under Section 151 CPC for getting the possession of the disputed house from the appellants and the said application was dismissed as withdrawn. Therefore, the High Court took note of the fact that even according to the defendant nos. 1 & 2 the appellants were in possession of the
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 disputed house. Therefore, in light of the fact situation, the High Court has clearly erred in deleting para 20 in exercise of powers under Order 47 Rule 1 CPC more particularly in the light of the settled preposition of law laid down by this Court in the aforesaid decisions.
12. Now so far as the submission on behalf of the respondents - original defendants 1 & 2 and the reasons given by the High Court while allowing the review application and deleting para 20 that no issue was framed by the learned Trial Court with respect to possession and/or there was no issue before the Learned Trial Court with respect to the possession and therefore the observations made in para 20 with respect to possession of the plaintiff - appellant herein was unwarranted and therefore, the same was rightly deleted is concerned first of all on the aforesaid ground the powers under Order 47 Rule 1 could not have been exercised. At the most, observations made in para 20 can be said to be erroneous decision, though for the reasons stated herein below the same cannot be said to be erroneous decision and as observed hereinabove the said observations were made on appreciation of evidence on record, the aforesaid cannot be a ground to exercise of powers under Order 47 Rule 1 CPC.
12.1 Even otherwise non-framing of the issue with respect to possession would have no bearing and/or it fades into insignificance. It is required to be noted that there were necessary pleadings with respect to possession in the plaint as well as in the written statement. Even the parties also led the evidence on the possession. The original plaintiff - appellant herein led the evidence with supporting documents to show his possession and to that, there was no cross-examination by the respondent-defendants. The respondent-defendants did not lead any evidence to show their possession. Therefore,
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 the parties were aware of the rival cases. On a holistic and comprehensive reading of the pleadings and the deposition of PW1 and PW2, it is unescapable that the plaintiff had intendedly, directly and unequivocally raised in its pleadings the question of possession. As observed hereinabove even in the written statement, the defendants also made an averment with respect to possession. Thus neither prejudice was caused nor the proceedings can be said to have been vitiated for want of framing the issue. As observed and held by this Court in the case of Sri Gangai Vinayagar Temple vs. Meenakshi Ammal , if the parties are aware of the rival cases, the failure to formally formulate the issue fades into insignificance when an extensive evidence has been recorded without any demur. Even the observations made by the High Court that there was no issue with respect to possession before the Learned Trial Court and/or even before the High Court is not correct. As observed hereinabove in the pleadings in the plaint and even in the written statement filed by the defendants, there were necessary averments with respect to possession. Even the parties also led the evidence on possession."
26. Following the declaration of law referred to above, I am of the view that no interference is called for in these Review Petitions as the impugned order has been tested before the Hon'ble Supreme Court and the Hon'ble Supreme Court declined to interfere with the impugned order and therefore the impugned order cannot be reheard as an Appellate Court in view of bar under Section 114 of
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NC: 2025:KHC-D:3260 RP No. 100088 of 2014 C/W RP No. 100119 of 2014 RP No. 100124 of 2014 CPC. Hence, I do not find merits in the arguments advanced by the learned Senior counsel appearing for the Review petitioners.
27. Accordingly the Review Petitions are rejected.
Sd/-
(E.S.INDIRESH) JUDGE SH CT:ANB List No.: 1 Sl No.: 33