Allahabad High Court
Smt. Akhilesh Kumari & Anr. vs U.P.Avas Evam Vikas Parishad Thru H.C. & ... on 25 February, 2020
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 3 Case :- MISC. BENCH No. - 1675 of 2004 Petitioner :- Smt. Akhilesh Kumari & Anr. Respondent :- U.P.Avas Evam Vikas Parishad Thru H.C. & 4 Ors. Counsel for Petitioner :- P.S. Bajpai,Agendra Sinha,Prem Shankar,Sakha Ram Tiwari Counsel for Respondent :- R.K. Mehrotra,C.S.C.,P K Rai,Virendra Singh Hon'ble Ved Prakash Vaish,J.
Hon'ble Narendra Kumar Johari,J.
(ORAL) [C.M. Application No.45451 of 2017 (Condonation of Delay)]
1. Heard Sri P.S. Bajpai, learned counsel for the appellants/ applicants and Sri Parmanand Asthana, learned counsel for the respondents.
2. This is an application under Section 5 of the Limitation Act seeking condonation of delay in filing the review application bearing C.M. Application No.45451 of 2017.
3. Arguments on the application heard.
4. The grounds mentioned in the affidavit filed along with the application are found to be sufficient.
5. Accordingly, the delay in filing the application for recall is condoned and the application seeking condonation of delay in filing review application bearing C.M. Application No.45451 of 2017 stands disposed of.
[ C.M. Application No.45452 of 2017(Review)]
6. This is an application for review of order dated 25th January, 2017 passed by a Bench consisting of Hon'ble Mr. Justice Shabihul Hasnain and Hon'ble Mr. Justice Shamsher Bahadur Singh in Writ Petition No.1675 (MB) of 2004 and since thier lordships (Hon'ble Mr. Justice Shabihul Hasnain and Hon'ble Mr. Justice Shamsher Bahadur Singh) have retired, this review application has come up before this Bench. .
7. We have heard learned counsel for the applicant and also gone through the material available on record.
8. Having gone through the grounds taken in the review application, we find that the entire endeavour of the applicant is to show that the Court has not properly appreciated the matter and the judgment is not correct. Virtually, there is an attempt to review the matter which is not permissible under a review application.
9. It is settled law that an application for review cannot be entreated to be an opportunity to argue the case on merits afresh. In the garb of a review application, re-arguments on merits of the case cannot be allowed.
10. On perusal of Rule 1 of Order 47 of the C.P.C., 1908 it is manifestly clear that power of review is a creature of the statute and no court or quasi-judicial body can review its judgment or order unless it is legally empowered to do so. It must be conferred by law either specifically or by necessary implication. The review court cannot sit as appellate court. The mere possibility of two views is not a ground for review.
11. It is well settled that power of review can be exercised for the correction of a mistake and not to substitute a view. The error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be searched. It must be an error of inadvertence. A court of review has only a limited jurisdiction and it can allow a review on the grounds; (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 or order was made; (ii) mistake or error apparent on the face of the record, or (iii) for any other sufficient reason.
12. Rule 1 of Order 47 of the C.P.C., 1908 reads as under:
R. 1. Application for review of Judgment - (1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes,
and who from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
13. In 'Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh',AIR 1964 SC 1372 the Court said:
"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."
14. In 'Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma' 1979 (4) SCC 389 the Court said:
"... 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 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."
15. Again, in 'Meera Bhanja v. Nirmala Kumari Choudhury', AIR 1995 SC 455 while quoting with approval the above passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Shartn (supra), the 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.
16. In 'Parsion Devi and others Vs. Sumitri Devi and others', 1997 (8) SCC 715 it was held that an error, which is not self evident and has to be detected by process of reasoning, can hardly be said to be error apparent on the face of the record justifying the court to exercise powers of review in exercise of review jurisdiction.
17. In 'Rajendra Kumar Vs. Rambai', AIR 2003 SC 2095, the Apex Court has observed about limited scope of judicial intervention at the time of review of the judgment and said:
"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 judgement/order cannot be disturbed."
18. A close scrutiny of the aforesaid judgments mentioned above it is clear that review is not an appeal in disguise. Rehearing of the matter is impermissible in the garb of review. It is an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. In 'Lily Thomas Vs. Union of India', AIR 2000 SC 1650, the Court held that power of review can be exercised for correction of a mistake and not to substitute a new. Such powers can be exercised within limits of the statute dealing with the exercise of power. The aforesaid view is reiterated in 'Inderchand Jain Vs. Motilal', (2009) 4 SCC 665.
19. In another case, 'Kamlesh Verma Vs. Mayawati and others', 2013 (8) SCC 320, it was observed:
"19. 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 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.
Summary of the Principles:
20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" 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., AIR 1954 SC 526, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., 2013 (8) SCC 337.
22.2. When the review will not be maintainable:-
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is 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." (emphasis supplied) ".
20. Applying the aforesaid law to the facts and circumstances of the case, we are of the considered opinion that there is no sufficient ground for review of judgment dated 25th January, 2017.
21. In the light of aforesaid judgments, the application for review deserves to be dismissed and the same is hereby dismissed.
(Narendra Kumar Johri) (Ved Prakash Vaish)
Judge Judge
Order Date :- 25.2.2020
Shanu/-