Gujarat High Court
Heirs Of Decd. Maniben D/O Naranbhai ... vs Heirs Of Decd. Dwarkabhai Naranbhai ... on 28 April, 2017
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
C/MCA/2685/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 2685 of 2016
In SECOND APPEAL NO. 109 of 2016
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HEIRS OF DECD. MANIBEN D/O NARANBHAI ISHVARBHAI AND WD/O KANTILAL NATHALAL PATEL....Applicant(s) Versus HEIRS OF DECD. DWARKABHAI NARANBHAI ISHVARBHAI &
3....Opponent(s) ========================================================== Appearance:
MR YN OZA, SENIOR ADVOCATE with MR PRATIK Y JASANI, ADVOCATE for the Applicant(s) No. 1 - 1.3.4 , 1.4 - 1.5 MR. ZALAK B PIPALIA, ADVOCATE for the Opponent(s) No. 3 MR MIHIR THAKORE, SENIOR ADVOCATE WITH MSMINI M NAIR, ADVOCATE for the Opponent(s) No. 4 ========================================================== CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 28/04/2017 CAV ORDER
1. Heard Ld. Mr. Y.N. Oza, Ld. Senior counsel for Mr. Pratik Jasani for the application and Mr. Anshin H. Desai, Ld. Senior counsel for Mr. Zalak B. Pipaliya for Respondent no.3 and Mr. Mihir Thakore, Ld. Senior counsel for Ms. Mini Nair, advocate for respondent no.4.
2. After CAV judgment dated 02.09.2016, the present applicants have filled the present application for review of the judgment in Second Appeal No.109 of 2016, initially Page 1 of 24 HC-NIC Page 1 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER notice was issued and as the operation and implementation of the order passed in Second Appeal No.109 of 2016 was stayed for a period of four weeks, stay was continued in the present application by the first exparte order dated 02.10.2016. Thereafter application was heard on several occasions at length and the hearing concluded on dated 18.04.2017. And on 19.04.2017, the applicants filed written submissions, the respondents also filed written submissions, the respondents also filed written submission on 24.04.2017.
3. Mr. Y.N.Oza, Ld. Senior counsel has argued that the CAV Judgment dated 02.09.2016 may be reviewed, that relinquishment issue is not properly dealt with, Registration is a must under the Indian Registration Act. 1908, Revenue entry does not derive title, written document requires registration as per Section 17(1)(b) of the Registration Act, that non consideration of the judgment amounts to error apparent on the face of record, that the title has to be established dehors revenue entry, custom cannot override law, that custom on merits of the Second Appeal namely:
(A) Civil Appeal no. 3725 of 2015 in the case of H. Lakshimaiah Reddy and others Page 2 of 24 HC-NIC Page 2 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER versus L.Venkatesh Reddy and others.
It has been argued that entry does not extinguish title and is for fiscal purposes.
(B) Civil appeal no. 2116 of 1972 in the case of Dina Ji and others versus Daddi and others It has been argued that in that case registered deed of adaptation with a clause of relinquishment, the said deed was not registered and relinquishment could not be admitted in evidence. (C) 2008(0) GLHEL_SC 41780 in the case of Rajinder Singh versus State of Jammu and Kashmir It has been argued that revenue entry cannot decide ownership and title. (D) 2009 (2) G.L.H. 94 in the case of Sankalchand Jaychand Patel and others It has been argued that relinquishment has to be done by registered document (E) 2008 (14) SCC 171 in the case of Assistant Commissioner, Income Tax, Rajkot versus Saurashtra Kutch Stock Exchange Ltd.
It has been argued that the judgment reviewed as binding decision as in the cited case a binding decision of superior court held was a mistake and Page 3 of 24 HC-NIC Page 3 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER error apparent from the record if not followed.
(F) 2004(0) GLHEL_HC 203519 in the case of Gandabhai Patel versus State of Gujarat It has been argued that revenue entries do not create any right, title, interest in the property and is for fiscal purpose and 2003(2) SCC 111 in the case of Bhavnagar University versus Palitana Sugar mill(P) LTD. And others and has argued that article 141 in the case of Constitution of India binds the courts and therefore, on the judgment of the Hon'ble Apex Court as above, Review Application be allowed.
4. He has submitted that it appears on perusing the order dated 02.09.2016 that there are no findings recorded by this Court as to how and in what manner the questions of law framed by the applicants are bearing no substance or are such that the appeal so preferred by the applicants can be dismissed summarily without referring the said questions of law.
5. He has submitted that during the course of arguments, it was argued by the applicants that the applicants have not questioned the entry No.1166 in any way. That it was also contended by the applicants that even if the Page 4 of 24 HC-NIC Page 4 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER entry No.1166 validly remains on record, the same is having no potential to decide title. It was also argued by the applicants that the entries are only for fiscal purpose and it cannot decide title. The applicants submit that the above referred aspects though argued by the applicants, are not appearing in the order dated 02.09.2016.
6. He has submitted that it was one of the contentions of the applicants that the plaint of the applicants if read as a whole would not be barred by the law of limitation. It was also argued on behalf of the applicants that while considering the application under Order VII, Rule 11, the averments made in the plaint are to be read as it is and each averment made in the plaint is to be accepted to be true. It was also submitted by the applicants that reading the plaint as a whole, by no stretch of imagination it can be said that the plaint can be rejected on the ground of Order VII, Rule 11. The applicants submit that above referred aspect was elaborately argued by the applicants. However, the same is not forming part of the order dated 02.09.2016 passed by this Court.
7. He has submitted that the issue of limitation is a mixed question of law and facts and if the averments of the plaint are perused, which were read by the applicants on Page 5 of 24 HC-NIC Page 5 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER various occasions at the time of arguments, it would be amply clear that all the averments are of such nature which cannot be decided summarily and it would be burden on the shoulder of the applicants to prove the same by leading evidence. It was also contended by the applicants that the above referred crucial aspect has not been considered by both the Courts below while considering the application Ex.15 filed by the concerned respondents invoking Order VII, Rule 11 of Code of Civil Procedure, 1908 as well as in the Appeal. The applicants submit that this Court while passing the order dated 02.09.2016 has not taken into consideration the above referred argument.
8. He has submitted that the applicants had also contended that the arguments urged by the other side, viz. that the applicants have questioned the entry No.1166 after a span of 51 years is factually incorrect inasmuch as the applicants have never challenged entry no.1166 in the suit proceedings. The applicants have also contended that the applicants had sought for the prayer of partition as well as their rights in the suit property. The applicants had also contended that the concerned Civil Court may or may not accept the case of the applicants on the ground of delay, but the said aspect cannot Page 6 of 24 HC-NIC Page 6 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER be countenanced while considering the application under Order VII, Rule 11 of Code of Civil Procedure, 1908. The applicants submit that the above referred argument was extensively canvassed before this Court, however the same does not appear in the order dated 02.09.2016.
9. He has submitted that it was contended by the applicants before this Court that in the year 2010, the applicants were approached by their family members(respondent herein) for the purpose of selling another parcel of land being Revenue survey No. 490 and the applicants had given their power of attorney for the purpose of transferring the said land, and after completion of the said transfer they had also been paid their share arising from the sale of the land bearing survey no.490. The Applicants submit that it is contended by the Applicants that if in 2010 the applicants were approached by their family members for the purpose of transferring one parcel of land, it implies that the right of the applicants as prayed for by the applicants in the plaint is intact and the applicants are entitled for making the prayers for partition as well as for demanding their share. It was also contended on behalf of the applicants that very recently when the applicants came across the Page 7 of 24 HC-NIC Page 7 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER advertisement of title clearance by the concerned respondent, the applicants came to know of the ill intentions of the concerned respondents in duping the applicants which prompted the applicants to file a suit before the learned Trial Court being Regular Civil Suit No. 200/2014. The applicants, by referring to above factual details contented before this Court that the above referred aspects will have to proved by the applicants by leading evidence and the suit filed by the applicants cannot be straightaway rejected on the ground of limitation as prayed for by the respondents. The applicants submit that the above referred aspect though was canvassed before this Court is not forming part of the order dated 02.09.2016 passed by this Court.
10. He has submitted that it was contended by the applicants that both the Courts below, i.e. the learned Trial Court as well as the learned Appellate Court, have erred in not appreciating the aspect that the applicants are not claiming their rights by virtue of any revenue entry and both the Courts below have passed orders only upon relying on the revenue entries. It was contended by the applicants that rights of ownership can only be decided by a competent civil court it cannot be decided by merely referring to any revenue entry. The applicants had contended Page 8 of 24 HC-NIC Page 8 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER before this Court that the courts below have thus erred in dismissing the suit filed by the applicants by merely relying on the revenue entries. The above referred aspect though argued by the applicants before this Court does not form part of the order dated 02.09.2016.
11. He has submitted that the applicants had also contended before this Court, relying upon Sec.17 of the Registration Act, that for the purpose of relinquishing/extinguishing the right from a property the worth of which exceeds Rs.100/, registration of the document is mandatory and there cannot be any oral transfer. It was also contended by the applicants before this Court that the rights of the applicants cannot be waived or cannot be taken away by merely making oral statement before the revenue authority, which is again in dispute in the present case. That though the above referred aspect was extensively canvassed by the applicants before this Court, the same is not forming part of the order dated 02.09.2016.
12. He has submitted that the applicants had also contended before this Court that upon demise of Shri Naranbhai Ishwarbhai Patel that is 10.03.1963, on the very next date that is on 11.03.1963, entry no.1166 has been mutated in the revenue records by recording Page 9 of 24 HC-NIC Page 9 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER that the mother(Maniben) and grand mother(Icchaben) of the applicants has waived/relinquished their rights from the estate of deceased Naranbhai Ishwarbhai Patel. It was also contended by the applicants that a day after the demise of Naranbhai, the mother of the applicants would be bereaving the death of her father and grandmother of her husband in the family and as such it is not possible for the mother of the applicants to go before the revenue authorities for giving effect of mutation. The above referred aspect was extensively argued and canvassed by the applicants before this Court. However, the same is not forming part of the order dated 02.09.2016.
13. The applicants submit that relinquishment of right from the property does not include in family arrangement which otherwise if its in writing has to be registered mandatorily. In the present case when applicants mother is releasing/relinquishing/extinguishing her right is actually a transfer of title in favour of third person and that too of the property worth more than rupees 100 is squarely falls under the ambit of Section 17 of Registration Act, 1908 and hence such document is compulsorily required to be registered so as to give its effect in revenue record. Further, it was already Page 10 of 24 HC-NIC Page 10 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER canvassed that family arrangement means distribution of property amongst the member of family, in the present case there is no such distribution. That applicants also produced citation of High Court wherein it clearly states that if the family arrangement if incorporated in writing on a piece of paper then the said document compulsorily needs registration. However, the same is not forming part of the order dated 02.09.2016.
14. He has submitted that it is clear from the plain reading of prayer made in memo of suit that applicant has prayed for partition of ancestral property and there is no prayer in the suit challenging the revenue proceeding of 1963. That while deciding the application under Order7 Rule11d the court concern has to accept the averment made in the memo of suit as true and correct, that the correctness and genuineness of the same cannot be decided while deciding order7 Rule11d.
15. He has submitted that neither in the impugned judgment and decree of Trial Court nor in the order Lower Appellate Court, that nowhere it has been described as to on what date limitation to file a suit commenced and on what date limitation expired, that even under judgment and Decree under review there is no finding as to starting point Page 11 of 24 HC-NIC Page 11 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER of limitation and expiry of said limitation, without narrating starting point of limitation and its expiry and application of specific section of Indian limitation Act, no conclusion could be drawn.
16. He has submitted that the Second Appeal could only be decided on the basis of Substantial Question of Law or there has to be a finding that no question of law arises in the Second Appeal. That in the present Judgment of Second Appeal both things are lacking, and this is contrary to sec 100 of Civil Procedure Code.
17. He has submitted that while deciding the Second Appeal the correctness or genuineness of pleading is not required to be decided, however, while passing judgment under review the finding about the pleading of memo of suit has been given and conclusion are reached ought not to have been, therefore this is contrary to provision of order7 Rule11d and therefore its error apparent on the face of record.
18. It is important to note that in order to challenge any of the thing the starting point of limitation is the date on which said thing or fact came to knowledge of party, the passing of number of years is not material but what is material is date of knowledge and Page 12 of 24 HC-NIC Page 12 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER therefore the above mentioned finding of Court is clearly misconception of law. There is also a misconception of fact that entry no.1166 was mutated in the revenue record after statement were given by Maniben Naranbhai and her mother Ichhaben Naranbhai, it is important to note that it is not the pleading in the suit but the factum of recording statement of Maniben Naranbhai by talati is denied by the plaintiff in the suit.
19. For the respondents in the present Application it is argued by Mr. Anshin H. Desai, Ld. Senior counsel and Affidavitin reply is filled and based on the same it is vehemently contended that the present Review Application deserves to be dismissed with heavy costs, the same is abuse of process of the court, there is suppression of material facts, misstatements in facts, misstatements on position of law, this is vexatious litigation, applicants are trying to drag the litigation to tire out the Respondents, that by change of advocate, rehearing of the Second Appeal on merits is being tried which is not permissible, there are concurrent findings of two courts and the CAV judgment dated 02.09.2016 in the Second Appeal No.109 of 2016 and in all there are three judgments against the Applicants, instead of Page 13 of 24 HC-NIC Page 13 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER approaching the Hon'ble Supreme Court of India attempt is being made to keep the litigation pending and that there is no error apparent on the face of record, that it is a law well laid down that under Order 47 of the Code of Civil Procedure, 1908 even if question of law on which that judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other court shall not be a ground for Review of such Judgment, that law of limitation is a 'Law' which can be termed to fall within that ambit of Order 7 Rule 11 of the Code of Civil Procedure, 1908 and in the case of Hardesh Ores(P) Ltd. And others versus HEDE Company reported in 2007 (5) SCC 614 in paragraph 25 it has been held that the powers under Order 7 Rule 11 (d) can be exercised and has therefore been rightly exercised by all the three courts and has also cited the case of Raj Narain Sarin (dead) through Lrs. And others versus Laxmi Devi and others reported in 2002(10) SCC 501 and has argued that such type of litigation is utterly vexatious and abuse of process of Court. Mr. Desai has also cited the following Judgments:
A.1997 (9) SCC 736 in the case of Tamilnadu Electricity Board and another Vs. N. Raju Reddiar and another B.2004(10) SCC 126 in the case of Surendra Page 14 of 24 HC-NIC Page 14 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER Kumar Vakil and others Vs. Chief Executive Officer, M.P. and others C.2006(4) GLR 3673 in the case of state of Gujarat Vs. Madhubindu Jayshankar Vyas and another D.2009(14) SSC 663 in the case of Inderchand Jain (dead) through legal heirs Vs. Motilal (dead) through legal heirs E.2013(3) GLH 143 in the case of Kamlesh Verma Vs. Mayavati And others F. Misc. Civil Application (OJ) no.33 of 2016(Judgment dated 12.08.2016) in the case of Vedica Procon Pvt. Ltd. Vs. official Liquidator of Omex Investors Ltd.
1. Mr. Desai has also contended that even before the Ld. Special Secretary, Revenue Department (Appeals) where the Revenue entry proceedings have now come to an end the order passed in the present application was being cited and projected to keep the revenue entry proceedings pending on the ground that the present application is pending before this court and ther3efore the court and quasi -
judicial authorities in a stale and hopelessly time barred issue and also on this ground Review Application may be dismissed with costs and exparte asinterim stay may kindly be vacated as there was never any injunction granted in the suit being Regular Page 15 of 24 HC-NIC Page 15 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER Civil Suit No.200 of 2014 and therefore there is no question of any stay in the matter.
2. Mr. Mihir Thakore, Ld. Senior Counsel for Ms. Mini Nair has argued that under the Transfer of Property Act, 1882 when there as oral transfer which is permitted and in which there is no writing expressly required by law then no registration is required. He has argued that relinquishment in such a case does not require registration, it is lifting up of blood relative's right and not creation of right in favour of the person who already had a right and share in the Property being a blood relative, not only that but the family arrangement/relinquishment has been acted upon and during the lifetime of Maniben no dispute is raised and after a gross period of 51 years a totally frivolous suit is filled without any specific cause of action. That there is no error apparent on the face of record and all the points have been considered in the second appeal, attempt is being made to reargue the Second Appeal by change of advocate which is impermissible and therefore the present Application is an abuse of the process of the Court and may kindly be dismissed with costs.
3. Having heard the learned advocates for the parties at length, I hold that the present Review Application is not maintainable, it is Page 16 of 24 HC-NIC Page 16 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER filed to delay the proceedings and keep the litigation alive, that there is no error apparent on the face of record, the suit is rightly rejected by Trial Court and Rightly confirmed by the First Appellate Court, both the judgments have rightly been confirmed in the Second appeal no.109 of 2016 in the CAV judgment dated 02.09.2016 for the reasons below, I hold that the present application deserves to be dismissed.
4. The judgments cited by Mr. Y.N. Oza, Ld. Senior Counsel for the applicants are mainly on three Grounds that revenue entries being for fiscal purpose, relinquishment deed requires registration and that judgments on these two issues have not been considered and hence is error apparent on face of record and the application should be allowed. The arguments of the Applicants are not accepted firstly, because in the CAV judgment dated 02.09.2016 in the Second Appeal no.109 of 2016 was heard at length and Ld. Senior Counsel Mr. S.N. Soparker appeared for Mr. Pratik Jasani for the applicants and had taken me to all these contentions which are recorded in the CAV judgment dated 02.09.2016, mot only that the judgments which were cited by parties have been considered an in the present application it is mere repetition of the same arguments for which Page 17 of 24 HC-NIC Page 17 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER Review Application is not the remedy, having held that the mother of the applicant during her lifetime never claimed any share in the property nor did she challenge any fact of relinquishment of her share in any property till she expired on 18.09.2005, the suit in question being Regular Civil Suit no. 200 of 2014 is also filled after 9 years of her death and as such after 51 years of the relinquishment.
5. I have also considered the fact that the revenue authorities have also not condoned the delay in challenging the entry after 51 years is not required to be registered under Indian Registration Act, 1908 as there is no document of transfer, relinquishment that arose between first blood relations is to be looked in to as accepted routine practice in prevalent rural areas of the country since decades and I hold that crafty and shrew drafting cannot bring a cause of action and a hopelessly time barred suit cannot be allowed to be tried in view of judgments which were already cited before me. Also that rehearing of second appeal on the same ground is impermissible, that Mr. Y.N. Oza, Ld. Senior Counsel has not been able to point out that how a review application can be entertained on facts which have been considered and after hearing all the parties the judgment is Page 18 of 24 HC-NIC Page 18 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER delivered and has not been able to point out as to what is the error apparent on the face of record. It is a steeled law that rehearing on merits is impermissible, it is not a case of a simple revenue entry for fiscal purpose, bare reading of the plaint makes it evident that the suit is a result of crafty drafting and a stale issue is tried to be opened by raising such issues, the judgments cited by the applicants are on the issue and facts where unreasonable time, limitation Act, where not the points which were decided, that present is not a case where relinquishment is by written document, present is not a case where there is any transfer with third parties before 51 years.
6. That there is no substance in the argument that there is any binding of judgment on the issue of facts similar to present case and hence is an error apparent on the face of record. Every judgment has its foundational acts and in the facts of the present case it cannot be said that there is any judgment which is binding on the present facts.
7. Though not argued the issue of substantial question of law being dealt with at the time of summary dismissal of second appeal is being dismissed and that substantial questions of law are being found much less questions of law they need not be framed and Page 19 of 24 HC-NIC Page 19 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER answered. When the substance of the judgment delivered answers the issues and arguments advanced, when parties go in to an appeal know fully well the issue/ the rival case arising for consideration before court, such over technical argument cannot be entertained as held by Hon'ble Supreme Court of India reported in 2007(15) SCC 157 in the case of Kannan (dead) through LRS and others versus V.S.Pandurangam (dead) by Lrs and others. In 2017(2)SCC 415 in the case of Laliteshwar Prasad Singh and others versus S.P.Srivastava(dead) through legal representatives, while considering order 41 Rule 31 of the Civil Procedure code, 1908 it has been held that where Appellate court agrees with the views of Trial court, it need not restate everything and expression of general agreement with reasons given by Trial Court would ordinarily suffice in such a case and in this judgment it was a case and argument under section 96 of the Code of Civil Procedure, 1908 points of determination are not framed, despite that the said law is laid down. That if there are no substantial questions of law which arise also on that they need not be framed and that too before admission of Second Appeal under section 100 of the Code of Civil Procedure, 1908 then no such question is required to be framed where the Second appeal is summarily dismissed. I Page 20 of 24 HC-NIC Page 20 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER have dealt with this issue because the same is reflected in the written submission of the Applicants but not a single oral argument was advanced on the issue by the Applicants.
8. The judgment cited by Mr. Anshin H. Desai, Ld. Senior counsel, that there is no error apparent on the face of records and that the Hon'ble Apex court in the case of Tamilnadu Electricity Board and another Vs. N. Raju Reddiar and another reported in 1997 (9) SCC 736 that practice of filling review petition by changing the advocate who had appeared in main proceedings before the Hon'ble court. Such practice held is an abuse of process of law. In the case of Surendra Kumar Vakil and others Vs. Chief Executive Officer, M.P. and others reported in 2004(10) SCC 126 in paragraph 10 it has been held that a point that has been heard and decided by the court cannot form aground for review even if assuming that the view taken in the judgment under review is erroneous. In the case of State of Gujarat Vs. Madhubindu Jayshankar Vyas and another reported in 2006(4) GLR 3673 in paragraph 25 it has been held that Power of Review can be used only to rectify mistake apparent on the face of records and not to substitute the view. A mistake if has to be fished out and searched out cannot be said to be a mistake apparent on face of record. It Page 21 of 24 HC-NIC Page 21 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER is also held that review cannot be considered as an appeal in disguise. In the case of Inderchand Jain(dead) through legal heirs Vs. Motilal (dead) through legal heirs reported in 2009(14) SCC 663 it has been held that Review is not an appeal in disguise. Review court cannot sit in appeal over its own order and rehearing of the matter is impermissible in law. Review is exception to general rule that once a judgment is signed and pronounced, it should not be altered. Courts should not invoke their inherent jurisdiction for reviewing any order. In the case of Kamlesh Verma Vs. Mayavati and others reported in 2013 (3) GLH 143 in paragraph 15 and 16 it has been held that review will not be maintainable when (a) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (b) Minor mistakes of inconsequential import (c) Review proceedings cannot be equated with the original hearing of the case. (d) Review is not maintainable unless the material error, manifest on the fact of the order, undermines its soundness or results in miscarriage of justice. (e) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (f) The mere possibility of two views on the subject cannot be a ground for review. (g) The error Page 22 of 24 HC-NIC Page 22 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER apparent on the fact of the record should not be an error which has to be fished out and searched. (h) 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. (i) Review is not maintainable when the same relief sought at the time of arguing the main matter has been negative. In the case of Vedica Procon Pvt. Ltd. Vs. Official Liquidator of Omex Investor Ltd Misc. Civil Application (OJ) no. 33 of 2016(judgment dated 12.08.2016) this court has held that there is no error apparent on the face of record and a review of the judgment is not permissible only for the purpose of rehearing and for a fresh decision. I am in complete agreement with the arguments on the above points and hence the review application is dismissed.
9. Ms. Mini Nair has cited 1996(4) SCC 697 in the case of Taraknath and another versus Sushil Chandra Dey (dead) by Lrs. And others wherein which in paragraph 4 it is held that it is open for sisters to relinquish their rights by way of Gift, even oral, in favour of brothers which would be valid and in case of Dokka Samuel versus Dr. Jacon Lazares Chelly reported in 1997(4) SCC 478 it is held that omission on the part of counsel to cite an authority of law does not amount to error Page 23 of 24 HC-NIC Page 23 of 24 Created On Sat Apr 29 00:37:24 IST 2017 C/MCA/2685/2016 CAV ORDER apparent on the face of records so as to constitute ground for reviewing prior judgment and I in complete agreement with the above two decisions and therefore also I reject the Present Review Application.
10. In view of the above, the present application deserves to be dismissed and is dismissed. Adinterim Relief Stands vacated.
(Z.K.SAIYED, J.) KKS Page 24 of 24 HC-NIC Page 24 of 24 Created On Sat Apr 29 00:37:24 IST 2017