Madhya Pradesh High Court
Anokhi Lal Mahajan vs The State Of Madhya Pradesh on 19 April, 2018
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
R.P. No.153/2017 (Anokhi Lal Mahajan Vs. The State of Madhya Pradesh and Ors.) (1)
R.P. No.153/2017
(Anokhi Lal Mahajan Vs. The State of Madhya Pradesh and Ors.)
Indore, dated: 19.04.2018
Parties through their counsel.
Present petition has been filed for reviewing the order
dated 30.11.2016 passed in W.P. No.3204/2016. This Court
placing reliance upon a judgment delivered by the Full Bench of
this Court in the case of Chandrapal Yadav Vs. The State of
Madhya Pradesh and Ors. (W.P. No.651/2013) has decided
the writ petition.
There is no error apparent on the face of the record
warranting review.
The Apex Court in the case of Haridas Das Vs. Usha Rani
Bank (Smt) and Ors., reported in (2006) 4 SCC 78 in paragraph
13 and 20 has held as under :-
"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 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
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
R.P. No.153/2017 (Anokhi Lal Mahajan Vs. The State of Madhya Pradesh and Ors.) (2)
court should exercise the power to review its order with the
greatest circumspection. This Court in Thungabhadra Industries
Ltd. v. Govt. of A.P.1 held as follows: (SCR p. 186)
"[T]here 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. ... where without any
elaborate argument one could point to the error and say here is a
substantial point of law which stares 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."
20. When the aforesaid principles are applied to the background
facts of the present case, the position is clear that the High Court
had clearly fallen in error in accepting the prayer for review.
First, the crucial question which according to the High Court
was necessary to be adjudicated was the question whether Title
Suit No. 201 of 1985 (sic 1 of 1986) was barred by the
provisions of Order 2 Rule 2 CPC. This question arose in Title
Suit No. 1 of 1986 and was irrelevant so far as Title Suit No. 2
of 1987 is concerned. Additionally, the High Court erred in
holding that no prayer for leave under Order 2 Rule 2 CPC was
made in the plaint in Title Suit No. 201 of 1985. The claim of
oral agreement dated 19-8-1982 is mentioned in para 7 of the
plaint, and at the end of the plaint it has been noted that the right
to institute the suit for specific performance was reserved. That
being so, the High Court has erroneously held about infraction
of Order 2 Rule 2 CPC. This was not a case where Order 2 Rule
2 CPC has any application."
In the aforesaid case, the Apex Court has held that
rehearing of a case can be done on account of some mistake
or an error apparent on the face of the record or for any other
sufficient reason. In the present case, there is no error
apparent on the face of the record and the petitioner in fact
under the guise of review is challenging the order passed by
this Court, which is under review. Similarly the Apex Court
in the case of State of West Bengal and Ors. Vs. Kamal
Sengupta and Anr., reported in (2008) 8 SCC 612 in
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
R.P. No.153/2017 (Anokhi Lal Mahajan Vs. The State of Madhya Pradesh and Ors.) (3)
paragraphs 21, 22 and 35 has held as under:-
"21. At this stage it is apposite to observe that where a review is
sought on the ground of discovery of new matter or evidence,
such matter or evidence must be relevant and must be of such a
character that if the same had been produced, it might have
altered the judgment. In other words, mere discovery of new or
important matter or evidence is not sufficient ground for review
ex debito justitiae. Not only this, the party seeking review has
also to show that such additional 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
earlier.
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.
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 self-evident 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.
(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
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
R.P. No.153/2017 (Anokhi Lal Mahajan Vs. The State of Madhya Pradesh and Ors.) (4)
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."
In the aforesaid case the Apex Court has held that a
mistake or an error apparent on the face of the record means
a mistake or an error which is prima-facie visible and does
not require any detail examination. In the present case the
petitioner has not been able to point out any error apparent
on the face of the record, on the contrary this Court has
decided the case on merits.
The Apex Court again dealing with the scope of
interference and limitation of review in the case of
Inderchand Jain (dead) Through LRs Vs. Motilal (dead)
Through LRs, reported in (2009) 14 SCC 663 in paragraphs
7, 22, 24, 29, 31 and 33 has held as under :-
"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:
"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,
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
R.P. No.153/2017 (Anokhi Lal Mahajan Vs. The State of Madhya Pradesh and Ors.) (5)
(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 of the court which passed the decree or made the
order.'
22. Whereas the appellant-defendant filed a review application
confined to the question that he was entitled to the restitution of
the property and mesne profit in respect whereof the learned
Single Judge of the High Court did not pass any specific order,
the application for review filed by the respondent was on the
merit of the judgment. The relevant grounds of review which have been placed before us relate to:
(i) Unconditional withdrawal of some amount by one of the creditors of the defendant as also the defendant himself.
(ii) The defendant's application before the executing court that he was ready and willing to get the sale deed executed on receipt of amount in cash and the said admission allegedly was not brought to the notice of the court.
(iii) While holding that there was no agreement to reduce the sale consideration, the High Court had ignored the fact that it was an admitted case of the parties, as stipulated in the contract, that the defendants would get the premises vacated from the tenants within three months.
(iv) The appellant had prayed for an alternative relief viz. that he was ready to get the decree for specific performance of contract by paying Rs 1,15,000. The court did not consider the evidence of DWs 1 to 6 in their proper perspective.
(v) The court did not consider that the property could not be restored back to the appellant-defendant and as such the court should have exercised its discretionary jurisdiction.
24. An appeal is a continuation of the suit. Any decision taken by the appellate court would relate back, unless a contrary intention is shown, to the date of institution of the suit. There cannot be any doubt that the appellate court while exercising its appellate jurisdiction would be entitled to take into consideration the subsequent events for the purpose of moulding the relief as envisaged under Order 7 Rule 7 read with Order 41 Rule 33 of the Code of Civil Procedure. The same shall, however, not mean that the court would proceed to do so in a review application despite holding that the plaintiff was not entitled to grant of a decree for specific performance of contract.
29. Order 41 Rule 1 of the Code stipulates that filing of an appeal would not amount to automatic stay of the execution of the decree. The law acknowledges that during pendency of the HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE R.P. No.153/2017 (Anokhi Lal Mahajan Vs. The State of Madhya Pradesh and Ors.) (6) appeal it is possible for the decree-holder to get the decree executed. The execution of the decree during pendency of the appeal would, thus, be subject to the restitution of the property in the event the appeal is allowed and the decree is set aside. The court only at the time of passing a judgment and decree reversing that of the appellate court should take into consideration the subsequent events, but, by no stretch of imagination, can refuse to do so despite arriving at the findings that the plaintiff would not be entitled to grant of a decree.
31. Contention of Mr Venugopal that the defendant having accepted novation of contract but only the quantum of the amount being different, the court could have asked the respondent-plaintiff to deposit a further sum of Rs 24,000 cannot be accepted for more than one reason. Apart from the fact that such a contention had never been raised before the appellate court, keeping in view the finding of fact arrived at that there had in fact been no novation of contract, such a course of action was not open. In any view of the matter, the same would amount to reappreciation of evidence which was beyond the review jurisdiction of the High Court.
33. The High Court had rightly noticed the review jurisdiction of the court, which is as under:
"The law on the subject--exercise of power of review, as propounded by the Apex Court and various other High Courts may be summarised as hereunder:
(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.
(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.
(v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit."
In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied."
The Apex Court while dealing with the scope of review has held that re-appreciation of evidence and rehearing of case without there being any error apparent on the face of the record is not permissible in light of provisions as contained HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE R.P. No.153/2017 (Anokhi Lal Mahajan Vs. The State of Madhya Pradesh and Ors.) (7) U/s 114 and Order 47 Rule 1 of Code of Civil Procedure, 1908.
The Apex Court in the case of S. Bagirathi Ammal Vs. Palani Roman Catholic Mission, reported in (2009) 10 SCC 464 in paragraphs 12 and 26 has held as under :-
"12. An 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 fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, in such circumstances, the review will lie. Under the guise of review, the parties are not entitled to rehearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest can be set right by reviewing the order. With this background, let us analyse the impugned judgment of the High Court and find out whether it satisfies any of the tests formulated above.
26. As held earlier, if the judgment/order is vitiated by an apparent error or it is a palpable wrong and if the error is self-evident, review is permissible and in this case the High Court has rightly applied the said principles as provided under Order 47 Rule 1 CPC. In view of the same, we are unable to accept the arguments of learned Senior Counsel appearing for the appellant, on the other hand, we are in entire agreement with the view expressed by the High Court."
Keeping in view the aforesaid judgment, this Court does not find any reason to review the order dated 31.11.2016 passed in Writ Petition No.3204/2016. The Review Petition is accordingly dismissed.
No order as to costs.
Certified copy as per rules.
(S.C. Sharma)
N.R. Judge
Digitally signed by NARENDRA
KUMAR RAIPURIA
Date: 2018.04.23 11:17:42
+05'30'