Madhya Pradesh High Court
Kishan Singh Died Through Lrs A) Dhan ... vs The State Of Madhya Pradesh on 14 March, 2023
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 14 th OF MARCH, 2023
REVIEW PETITION No. 1154 of 2022
BETWEEN:-
1. KISHAN SINGH DIED THROUGH LRS
A) DHAN SINGH S/O LATE SHRI KISHAN SINGH,
AGED ABOUT 71 YEARS, OCCUPATION:
AGRICULTURIST RESIDENTOF VILLAGE
VISHRAIN TEHSIL KURWAI DISTRICT VIDISHA
(MADHYA PRADESH)
2. KISHAN SINGH DIED THROUGH LRS
B) SAMRAT SINGH S/O LATE KISHAN SINGH,
AGED ABOUT 61 YEARS, OCCUPATION:
AGRICULTURIST RESIDENTOF VILLAGE GUWARI
TAHSIL SIRONJ DISTRICT VIDISHA (MADHYA
PRADESH)
3. KISHAN SINGH DIED THROUGH LRS
C) RAM SINGH S/O LATE KISHAN SINGH, AGED
ABOUT 35 YEARS, OCCUPATION: AGRICULTURIST
RESIDENT OF VILLAGE GAMERIA TAHSIL
KURWAI DISTRICT VIDISHA (MADHYA PRADESH)
4. KISHAN SINGH DIED THROUGH LRS
D) PARWATI W/O LAXMAN SINGH, AGED ABOUT
65 YEARS, RESIDENT OF VILLAGE SUNAGYAI
TAHSIL SIRONJ, DISTRICT VIDISHA (MADHYA
PRADESH)
5. KISHAN SINGH DIED THROUGH LRS
E) GOGA BAI W/O JASWANT SINGH, AGED ABOUT
62 YEARS, RESIDENTOF SAHSRAWAD TAHSIL
KURWAI (MADHYA PRADESH)
6. KISHAN SINGH DIED THROUGH LRS
F) BENO BAI W/O SAITAN SINGH, AGED ABOUT 40
YE A R S , RESIDENT OF VILLAGE SUNAGYAI
TAHSIL SIRONJ, DISTRICT VIDISHA (MADHYA
PRADESH)
7. KISHAN SINGH DIED THROUGH LRS
G) MUNNI BAI W/O BHARAT SINGH, AGED ABOUT
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 3/14/2023
5:52:30 PM
2
38 YEARS, RESIDENT OF VILLAGE CHINDAI
TAHSIL SIRONJ, DISTRICT VIDISHA (MADHYA
PRADESH)
8. KISHAN SINGH DIED THROUGH LRS
H) SMT. SUSHEELA BAI W/O LAKHAN SINGH,
AGED ABOUT 33 YEARS, RESIDENT OF
AINCHANBADA TAHSIL SIRONJ DISTRICT
VIDISHA (MADHYA PRADESH)
.....PETITIONERS
(SHRI SANTOSH AGRAWAL, LEARNED COUNSEL FOR THE
PETITIONERS)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR DISTRICT VIDISHA (MADHYA
PRADESH)
2. TEHSILDAR TEHSIL SIRONJ DISTRICT VIDISHA
(MADHYA PRADESH)
3. BHAGWAN SINGH S/O VEER SINGH YADAV, AGED
ABOUT 45 YEARS, RESIDENT OF MADIA TAHSIL
TYONDA, DISTRICT VIDISHA (MADHYA
PRADESH)
.....RESPONDENTS
( SHRIC.P.SINGH - LEARNED PANEL LAWYER FOR THE
RESPONDENTNO.1 AND 2- STATE)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
Petitioner have filed the present petition under Order 47 Rule 1 of CrPC for review of order dated 13th September,2022 passed by this Court in Second Appeal No. 2720 of 2018.
(2) It is contended by learned counsel for the petitioners that this Court has dismissed aforesaid appeal on the ground of concurrent findings of fact whereas the finding given by the Court below was partly reversed by the lower appellate Court. Therefore, the judgment on which reliance was placed i.e. Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 3/14/2023 5:52:30 PM 3 Karnataka Board of Wakfvs. Anjuman EIsmail Madris-un-Niswan AIR 1999 SC 3067 is not applicable in the case at hand. It is further contended that non- consideration of substantial questions of law by this Court suffers from apparent error on the face of record. It is further contended that Patta was granted to the plaintiffs and they became Bhumiswami but the lower Appellate Court Court did give any opportunity of hearing to the petitioners- plaintiffs while passing order Ex.D4. As per provisions of Section 158 of MPLRC, Tehsildar has no power to cancel its own order in regard to granting Patta in favour of plaintiffs. This Court should have admitted second appeal by framing appropriate substantial questions of law arising in the matter and answered them on their respective merits rather than to dismiss the second appeal without considering any of the questions. Therefore, interference in the impugned judgment is called for to enable this Court to decide controversy in its proper perspective.This Court was not justified in dismissing the second appeal in the manner it had dismissed and this Court ought to have considered the questions raised before it and thereafter by formulating or framing the questions as substantial questions of law by a speaking and reasoned order. In support of his contention, he has relied on the judgment of Apex Court in the case of The J & K Bank Ltd. and Ors.vs. Smt. Neelam Rain AIR 2008 SC 1030 and State of Rajasthan and ors. vs. Shiv Dayal and Another (2019) 8 SCC
637. Hence, it is prayed that the impugned judgment passed by this Court deserves to be recalled and second appeal deserves to be restored on its original number.
(3) On the other hand, the counsel for the State contended that the power of review under Order 47 Rule 1 CPC is very limited and it may be Signature Not Verified exercised only if there is a mistake or an error apparent on the face of record.
Signed by: MAHENDRA BARIK Signing time: 3/14/2023 5:52:30 PM 4Power of review is not to be confused with appellate power and the review petition cannot be decided like a regular intra-Court appeal. It is further contended that the finding recorded by this Court while dismissing the second appeal cannot be examined de novo in exercise of review jurisdiction and every factual or legal error cannot be made subject-matter of review under Order 47 Rule 1 CPC. In order to attract the provisions of Order 47 Rule 1 CPC, an error or mistake must be apparent on the fact of record of case.
(4) Heard the learned counsel for the parties.
(5) The scope of review before this Court is limited to the extent of ground available under Order 47 rule 1 CPC which is reproduced below for ready reference and convenience:-
''Order XLVII
1. Application for review of judgment.''ÂÂ"(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 error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 3/14/2023 5:52:30 PM 5 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 applied for the review.
[Explanation. ''ÂÂ"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.]'' (6) The Hon'ble Apex Court in the matter of Kamlesh Verma Vs. Mayawati and Others, (2013) 8 SCC 320, has laid down the following principles ''when 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.
(7) Similarly, in the matter of Moran Mar Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 the Hon'ble Apex Court has laid down the following principles ''when review will not be maintainable'':-
''œ(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 3/14/2023 5:52:30 PM 6 the face of 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 reheard 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.'' (8) It is well-settled principle of law that in the guise of review, rehearing is not permissible. In order to seek review, it has to be demonstrated that order suffers from error apparent on the face of record. The Court while deciding the application for review cannot sit on appeal over the judgment or decree passed by it. The review petitioner cannot be given liberty to readdress the Court on merits because it is not an appeal in disguise where the judgment/order is to be considered on merits. [See: J.R. Raghupathy Vs. State of A.P. (AIR 1988 SC 1681), S. Bagirathi Ammal v. Palani Roman Catholic Mission, (2009) 10 SCC 464 and State of West Bengal and Others v. Kamal Sengupta and Another, (2008) 8 SCC 612 ].
(9) The Hon'ble Apex Court further in the matter of State Of West Bengal & Ors. Vs. Kamal Sengupta & Anr., (2008) 8 SCC 612 has held that mistake or error apparent on the face of the record means that mistake or Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 3/14/2023 5:52:30 PM 7 error which is prima facie visible and does not require any detail examination.
Erroneous view of law is not a ground for review and review cannot partake the category of the appeal.
(10) A bare perusal of aforesaid provisions as well as law laid down by the Hon'ble Apex Court reveals that none of grounds available for review under Order 47 Rule 1 CPC is made out in the present matter. In view of above, the judgment passed by this Court does not suffer from any error apparent on the face of the record, warranting review of the same by this Court.
(11) Accordingly, this review petition fails and is hereby dismissed.
(DEEPAK KUMAR AGARWAL) JUDGE MKB Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 3/14/2023 5:52:30 PM