Gujarat High Court
Kamleshbhai Ambalal & 3 vs Rajendra Natwarlal ... on 5 September, 2014
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/MCA/2216/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR REVIEW) NO. 2216 of 2014
In SPECIAL CIVIL APPLICATION NO. 1207 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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KAMLESHBHAI AMBALAL & 3....Applicant(s)
Versus
RAJENDRA NATWARLAL PATEL....Opponent(s)
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Appearance:
MR SHITAL R PATEL, ADVOCATE for the Applicant(s) No. 1 - 4
MS MEGHA JANI, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 5/09/2014
Page 1 of 31
C/MCA/2216/2014 CAV JUDGMENT
CAV JUDGMENT
1. Rule. Ms. Megha Jani, learned advocate waives service of notice of Rule on behalf of the respondent.
2. This application has been preferred under Order 47 Rule 1 of the Code of Civil Procedure, 1908 ("CPC" for short) for review/recall of the order dated 8-8- 2014 passed by this court in Special Civil Application No.1207 of 2013.
3. Briefly stated, the relevant factual background of the case is that the above-mentioned petition was preferred by the applicants (original petitioners) with a prayer to quash and set aside the order dated 22-1-2013, passed by the learned 10th Addl. Senior Civil Judge, Ahmedabad (Rural) ("the Trial Court" for short), below the application at Exh.85 in Civil Misc. Application No.65 of 2012, preferred by the respondent herein, for the appointment of a Court Commissioner. The application was allowed by the Trial Court. Vide the order sought to be reviewed, this Court rejected the petition filed by the applicants against the order of the Trial Court.
4. Mr.Shital R. Patel, learned advocate for the Page 2 of 31 C/MCA/2216/2014 CAV JUDGMENT applicants, has made the following submissions:-
(1) While passing the order dated 08.08.2014, the Court has proceeded on a footing that the respondent claims to have purchased 7892 sq. meters of land only.
The statement made by the respondent before this Court was that he is not concerned with any other land. In paragraph-15 of the judgment,it is observed "These Final Plots have been handed over to the respective allottees and some of them have got plans sanctioned, obtained Building Use Permission and have put up construction upon the Final Plots held by them". It is submitted that this finding is based on no evidence. (2) In paragraph-16 on internal page-14 of the judgment, this Court has held as below:
"The respondent claims to have purchased land admeasuring 7892 sq. meters only, out of the suit land of Survey No.137, which is a much larger area admeasuring 15783 sq. meters."
The Court has proceeded on a footing that it has accepted the arguments of the other side. Page 3 of 31 C/MCA/2216/2014 CAV JUDGMENT (3) In the second line of internal page-16 of the judgment, this Court has held as below:
"In the present case, the dispute is whether the respondent has committed a breach of the order of status-quo granted by the Trial Court, as confirmed by the High Court, by putting up construction on the suit land."
This Court proceeds on a footing that the breach committed by the respondent is by putting up construction. By making this observation, this Court has restricted the breach only to the construction on the land. It is not the case of the applicants that the respondent has violated the injunction order only by putting up construction as there is more to it than that.
On internal page No.19, in paragraph-25 of the judgment, this Court has observed that "....the dispute pertains to the allegation that construction has been put up by the respondent in breach of an order of status-quo."
As submitted above, the breach committed by the Page 4 of 31 C/MCA/2216/2014 CAV JUDGMENT respondent is not only confined to construction. (4) In paragraph-24, on internal page-18 of the judgment, this Court has observed that "....there is no dispute regarding the boundaries of the various Final Plots or the Development Permission granted by the competent authority to the allottees." This observation of the Court is based on no evidence and there is a serious dispute regarding the boundaries of the land.
(5) In paragraph-26, on internal page-20 of the judgment, this Court has held that "It is apparent that the suit land is subject to the implementation of the Draft Town Planning Scheme and roads have been built upon it, consuming a substantial portion thereof. Final Plots have also been carved out of Survey No.137 and are in the hands of various allottees."
This finding is not correct as no Final Plots are given to anyone.
Page 5 of 31 C/MCA/2216/2014 CAV JUDGMENT (6) When the petition was argued, the applicants had elaborately argued and pointed out that the respondent admitted that the dispute pertains to Survey No.137, admeasuring 15783 sq. meters. An issue was framed about Survey No.137. Exh.5 application was regarding Survey No.137 and the Appeal from Order filed by the respondent in this Court pertains to Survey No.137. The breach committed by the respondent arises out of this survey number. The Agreement to Sell is in respect of Survey No.137. The reference to the proposed Final Plot No.310 is only an incidental aspect. The Final Plot number is mentioned only because it may be possible that the area of the Final Plot may reduce or increase.
(7) That the respondent is trying to become over- smart by referring to the Final Plot. From the beginning the case of the respondent was not in reference to the Final Plot. The respondent was trying to assail the Sale Deed of the petitioner on the ground of breach of Section 43. Later on, the proposed Final Plots came into being after the Draft Town Planning Scheme was sanctioned. However, the location and shape of the proposed Final Plots would get Page 6 of 31 C/MCA/2216/2014 CAV JUDGMENT changed, as the Preliminary Town Planning Scheme has not yet been sanctioned. There is no sanctity attached to the Final Plots, therefore, the Court cannot take cognizance of them at this stage. Many changes have already occurred in respect of Survey No.137. The question is whether the Court can, in law, take cognizance of the Final Plots and determine the rights of the parties. In the submission of the learned advocate for the applicants, this cannot be done. (8) That two maps have been produced by the respondent along with the affidavit-in-reply filed by him in the petition. The map at page 299 shows only the Final Plot No.305. The map at page 298 shows other Final Plots which does not tally with the map at Page
299. The Court cannot put a seal of authenticity on map at page 299. There is no point in asking for the inspection of the Final Plots that are not close to Survey No.137. The map at page 298 is prepared by AUDA but it is clearly stated that it cannot be used as an official document. It, therefore, could not have been annexed by the respondent to the reply.
5. Apart from the above, learned advocate for the Page 7 of 31 C/MCA/2216/2014 CAV JUDGMENT applicants has made no other submissions and has not pressed any other grounds, including those raised in the application.
6. The application has been strongly resisted by Ms. Megha Jani, learned advocate for the respondent, by making the following submissions:
(1) By filing this review application, the applicants have tried to re-open and re-argue the matter. The submissions made by the applicants do not fall within the scope of Order 47 of the CPC. It is an established position of law that a judgment can be reviewed only when there is a mistake or error apparent on the face of it. An error which is not self-evident, cannot be said to be an error for the purpose of review. In the present case, the judgment does not suffer from any error apparent on the face of the record.
(2) That two observations made by the Court in the judgment under review would answer all the contentions raised by the applicants. In paragraph-14, internal page-11 of the judgment, this Court has held as below:Page 8 of 31 C/MCA/2216/2014 CAV JUDGMENT
"14. It may be clarified at the outset that though learned counsel for the respective parties have made certain submissions on the merits of their respective cases in the suit as well as the application for breach-of-injunction proceedings preferred by the petitioners, this court does not consider it appropriate to deal with those submissions, as both the suit and the application under Order 39 Rule 2A are pending adjudication before the Trial Court. The focus of this Court would be whether the impugned order passed by the Trial Court, directing the appointment of a Court Commissioner to inspect Survey No.137 as well as the Final Plots mentioned in the application of the respondent, is just and proper or whether it suffers from any illegality, perversity or jurisdictional error."
(3) This shows that the Court has considered the petition only with regard to the legality and validity of the order of the Trial Court impugned before it in the petition, whereby a Court Commissioner has been appointed. The other aspects that arise from the application under Order 39 Rule 2A of CPC and from the suit proceedings, which are not the subject matter of challenge before the Court, have not been gone Page 9 of 31 C/MCA/2216/2014 CAV JUDGMENT into.
(4) That in paragraph-16, internal page-14 of the judgment, this Court has held that "The respondent claims to have purchased land admeasuring 7892 sq. meters only, out of the suit land of Survey No.137, which is a much larger area admeasuring 15783 sq. meters."
This observation of the Court is based upon the record produced before it. It is an accepted position that the Draft Town Planning Scheme has been sanctioned and Final Plots have been carved out. The Court has observed that the respondent claims to have purchased 7892 sq. meters of land only, out of Survey No.137 which is a much larger area admeasuring 15783 sq. meters. The Court has merely recorded the submissions advanced on behalf of the respondent but has rendered no findings regarding the area of land purchased by the respondent is 7892 sq. meters, or not. The submissions of the respondent have been recorded in this paragraph which cannot be said to be a finding rendered by this Court. Therefore, the submissions made on behalf of the applicants are Page 10 of 31 C/MCA/2216/2014 CAV JUDGMENT totally unfounded.
(5) That the applicants have themselves mentioned in their application under Order 39 Rule 2A of the CPC, annexed at page 92 of the petition, that the respondent is carrying on digging and construction. Such averments are also made on page 94, page 101, and page 104. The very case of the applicants, themselves, is that the respondent is carrying on illegal construction and digging. Therefore, the submissions made by the learned advocate for the applicants that the observation of the Court that the alleged breach committed by the respondent pertains to putting up construction are incorrect, cannot be sustained. The Court has committed no error in making these observations, which are born out from the application made by the applicants, themselves. (6) In the reply to the application, the respondent has stated that Final Plots have been carved out on the land, therefore, it is not as though the observations of the Court are not based on any material on record.
Page 11 of 31 C/MCA/2216/2014 CAV JUDGMENT (7) The respondent has produced photographs of buildings constructed on other plots,annexed at running pages 302 to 307. It is the case of the respondent that the constructions put up are on Final Plots by other persons. The existence of Final Plots and Town Planning roads on Survey No.137, after the sanction of the Draft Town Planning Scheme is, therefore, a reality that cannot be denied by the applicants. The observations of this Court in this regard, therefore, cannot be said to be based on no evidence.
(8) The applicants are misreading the judgment of this Court. In paragraph-24 of the judgment, the Court has observed that in the present case, there is no dispute regarding the boundaries of the various Final Plots or the Development Permission granted by the competent authority to the allottees. The Court is referring to the petition that was before it, arising out of the order of the Trial Court, appointing a Court Commissioner. The said observation is being misread out of context by the applicants. (9) The applicants have failed to point out any Page 12 of 31 C/MCA/2216/2014 CAV JUDGMENT error apparent on the face of the judgment. Nothing that is stated in the judgment is contrary to the record, or can be said to be an error apparent. The applicants are trying to re-argue the matter as though in appeal, which is beyond the scope of review jurisdiction.
7. In support of the above submissions, learned advocate for the respondent, has placed reliance upon a judgment of the Supreme Court in the case of Parsion Devi and others Vs. Sumitri Devi and others reported in (1997)8 SCC 715.
8. In rejoinder, learned advocate for the applicants has not advanced any new submissions but has cited a judgment of the Supreme Court in the case of Kamlesh Verma V. Mayawati and Ors., reported in AIR 2013 SC 3301, regarding the parameters of review jurisdiction.
9. This Court has heard learned counsel for the respective parties and perused the averments made in the application. It may be clarified that apart from the submissions recorded hereinabove, the learned advocate for the applicants has not pressed any other Page 13 of 31 C/MCA/2216/2014 CAV JUDGMENT grounds raised in the application.
10. As regard the first and second submissions advanced by the learned advocate for the applicants that while passing the order dated 08.08.2014, the Court has proceeded on the footing that the respondent claims to have purchased only 7892 sq. meters of land, it may be stated that the Court has merely recorded the submissions advanced by Ms.Megha Jani, learned advocate for the respondent, as is clear from paragraph 16 of the order, which reads as under:
"The respondent claims to have purchased land admeasuring 7892 sq. meters only, out of the suit land of Survey No.137, which is a much larger area admeasuring 15783 sq. meters."
11. It is not as though the Court has arrived at a finding on its own that the respondent has purchased 7892 sq. meters of land.
12. The submission advanced by the learned advocate for the applicants that the Court has proceeded on a footing that it has accepted the arguments of other side is, therefore, an incorrect reading of the said Page 14 of 31 C/MCA/2216/2014 CAV JUDGMENT order.
13. Learned advocate for the applicant has further submitted that in paragraph-15 of the judgment, the Court has observed that the Final Plots have been handed over to the respective allottees and some of them have got plans sanctioned, obtained Building Use Permission and have put up construction upon the Final Plots held by them. According to the learned advocate for the applicants this finding is based on no evidence, therefore, it constitutes an error apparent on the face of the record.
14. In the affidavit-in-reply filed by the respondent, it is clearly mentioned that upon implementation of the Draft Town Planning Scheme, Final Plots have been carved out and certain persons holding the Final Plots have also put up construction upon them, though, according to the respondent, he has not done so. Oral submissions to this effect were also advanced before this Court during the hearing of the petition. No material has been placed on record, by the applicants to show that the Draft Town Planning Scheme has not been implemented and the Final Plots Page 15 of 31 C/MCA/2216/2014 CAV JUDGMENT have not been carved out or handed over to the respective plot holders, therefore,the submission that the Court has made an observation on the basis of no evidence would not constitute an error apparent on the face of the record.
15. With regard to third submission made by the learned advocate for the applicants to the effect that the Court has proceeded on a footing that the breach committed by the respondent is by way of putting up construction, it is clear from the record that in the application filed by the applicants under Order 39 Rule 2A of the CPC for breach of injunction, it is the specific case of the applicants that the respondent is putting up illegal construction on the suit land, therefore, this ground raised by the applicants does not merit acceptance.
16. The fourth submission advanced before this Court by the learned advocate for the applicants is to the effect that in the order under review, the Court has held that there is no dispute regarding the boundaries of various Final Plots or the development permission granted by the Competent Authority to the allottees. Page 16 of 31 C/MCA/2216/2014 CAV JUDGMENT According to the learned advocate for the applicants, there is a serious dispute regarding the boundaries of land. It may be stated that the Court is referring to the dispute that was the subject matter before it, meaning thereby, the order of the Trial Court appointing the Court Commissioner, which did not deal with any dispute regarding boundaries. If the applicants dispute the boundaries of the Final Plots, they are free to ventilate their grievances before the Trial Court, as the application for breach of injunction is pending, as also the suit. This Court was not adjudicating any dispute regarding boundaries and the observations of the Court have been made in that context.
17. The fifth submission advanced by the learned advocate for the applicants is that in paragraph-26 of the order, the Court has stated that it is apparent that the suit land is subject to the implementation of the Draft Town Planning Scheme and roads have been built upon it, consuming a substantial portion thereof. Final Plots have also been carved out of Survey No.137 and are in the hands of various allottees. According to the learned advocate for the Page 17 of 31 C/MCA/2216/2014 CAV JUDGMENT applicants this finding is not correct as no Final Plots are given to anyone.
18. During the Course of the hearing, submissions were advanced on behalf of the respondent and photographs have also been produced on record of the petition showing construction of multi-storied buildings on Final Plots allotted to other persons. The carving out of Final Plots is apparent from the material on record, as also the Sale Deed produced by the applicants themselves. Whether the respondent has put up construction on the suit land, or not, or whether the construction is put up by other persons, was not the subject matter of the petition and no finding has been recorded by the Court in this regard. It is for the Trial Court to decide this issue as the application for breach of injunction is pending before it.
19. The sixth submission advanced by the learned advocate for the applicants is that during the course of hearing, it was argued and pointed out that the dispute pertains to Survey No.137 admeasuring 15783 sq. meters and an issue has also been framed by the Page 18 of 31 C/MCA/2216/2014 CAV JUDGMENT Trial Court in this regard. The alleged breach of injunction on the part of the respondent pertains to this Survey number. While passing the order dated 08.08.2014, this submission of the learned advocate for the applicants has been taken into consideration. If the applicants are not satisfied with the manner in which it has been dealt with by the Court, it was open to them to file appropriate proceedings. However, submissions on the merits of the matter would not be available to the applicants in review jurisdiction.
20. The seventh submission advanced by the learned advocate for the applicants, to the effect that the case of the applicants is not regarding the Final Plots as their location and shape would get changed as the Preliminary Town Planning Scheme has not yet been sanctioned, has already been taken into consideration in the order passed by this Court. While dealing with this aspect, the Court has not rendered any findings upon the aspect of carving out of the Final Plots, the ownership or boundaries thereof or whether the respondent, or any other person has put up construction on the Final Plots,or not. In this view of the matter it cannot be said that there is any Page 19 of 31 C/MCA/2216/2014 CAV JUDGMENT error apparent on the face of the order.
21. The eighth submission advanced by the learned advocate for the applicants is regarding the two Maps at pages 298 and 299 of the petition, produced with the reply filed by the respondent. The Map at page 298 is prepared by AUDA whereas the Map at page 299 has been put on record by the respondent. According to the learned advocate for the applicants, both the Maps do not tally. Be that as it may, this Court has not carried out a comparison of the said Maps. While deciding the petition, there was no occasion to deal with the authenticity or accuracy of the said Maps as the petition was regarding the legality and validity of the order of the Trial Court appointing a Court Commissioner. This submission of the learned advocate for the applicants, therefore, does not deserve acceptance.
22. The cumulative effect of the above discussion is that in the considered view of this Court, it cannot be said, on the basis of the submissions advanced by the learned advocate for the applicants, that the order dated 08.08.2014, passed by this Court, suffers Page 20 of 31 C/MCA/2216/2014 CAV JUDGMENT from any error apparent on the face of the record, save a factual error referred to herein-after.
23. At this stage, Order 47 of the CPC which delineates the scope of review jurisdiction may be noticed. The said provision of law reads as below.
"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.Page 21 of 31 C/MCA/2216/2014 CAV JUDGMENT
(2) A party who is not appealing from a decree or order may apply for a 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 applies for the review.
[Explanation.- 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.]"
24. Considering the present application in light of the above provision of law, it is clear that the applicants have not preferred the application on the ground of discovery of any new and important matter or evidence which, after the exercise of due diligence was not within their knowledge or could not be produced by them when the order was passed. As stated hereinabove, the applicants have not been successful in showing from the submissions advanced by them that there is any error apparent on the face of the record Page 22 of 31 C/MCA/2216/2014 CAV JUDGMENT so as to review the order.
25. In Parsion Devi and others Vs. Sumitri Devi and others (supra), relied upon by the learned advocate for the respondent, the Supreme Court has held as below:
"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. Vs. The Government of Andhra Pradesh (1965 (5) SCR 174 at 186) this Court opined:
"What, however, we are not
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 Page 23 of 31 C/MCA/2216/2014 CAV JUDGMENT 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 Vs. Nirmala Kumari Choudhury (1995 (1) SCC 170) while quoting with approval a passage from Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma & Ors. (1979 (4) SCC 389), 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.
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 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."
(emphasis supplied) Page 24 of 31 C/MCA/2216/2014 CAV JUDGMENT
26. Testing the present application on the touchstone of the principles of law enunciated by the Supreme Court as quoted hereinabove, it is apparent that the present application is nothing more than an attempt to re-open and re-argue the case on merits. As stated by the Supreme Court, there is a difference between an erroneous decision and an error apparent on the face of the record. An error apparent on the face of the record has to be self-evident and should not require a detailed process of reasoning for its detection. No such error is apparent on the face of the judgment under review, except a factual error that will be taken care of later. The present application is nothing but an appeal in disguise. No grounds for review of the judgment are made out on the basis of the submissions urged by the learned advocate for the applicants.
27. Learned advocate for the applicants has placed reliance upon a judgment of the Supreme Court in the case of Kamlesh Verma V. Mayawati and Ors., (Supra) wherein the Supreme Court has stated as below: Page 25 of 31 C/MCA/2216/2014 CAV JUDGMENT
"15) Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, 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:
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 Page 26 of 31 C/MCA/2216/2014 CAV JUDGMENT 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.
(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. (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.Page 27 of 31 C/MCA/2216/2014 CAV JUDGMENT
(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)
28. Examining the case of the applicants on the basis of the above principles enunciated by the Supreme Court, it is evident that the applicants have been unsuccessful in making out a case for review of the order passed by this Court. The Supreme Court has clearly stated that review proceedings cannot be equated with the original hearing of the case and a review is, by no means, an appeal in disguise. This is exactly what the applicants are seeking to achieve by filing the present application.
29. In Lily Thomas, etc. etc. v. Union of India and others reported in AIR 2000 SC 1650, the Supreme Court has observed:
"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 Page 28 of 31 C/MCA/2216/2014 CAV JUDGMENT denied that the review is the creation of a statute. The power of review can be exercised for correction of a mistake and 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 as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition or review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practiced. However ,the Supreme Court in exercise of its power under Art.136 or Art.32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment."
(Paras 52 and 55) (emphasis supplied)
30. However, having said that, this court has noticed an inadvertent factual error in the judgment which necessitates correction. In paragraph-15 of the said order, it is recorded that "No rejoinder has been filed by the petitioners to the affidavit-in-reply and Page 29 of 31 C/MCA/2216/2014 CAV JUDGMENT neither has any other documents to the contrary been placed on record by them." This is a factual error as an affidavit in rejoinder has been filed. Thus, the last sentence of paragraph-15, as quoted above, is directed to be deleted. However, the deletion of this sentence will not have any impact upon the view expressed by this Court.
31. As a result of the above discussion, this Court finds that no ground for recall of the order dated 8- 8-2014 passed by this Court is made out by the applicants. Apart from the deletion of the last sentence in paragraph-15 of the order, there shall be no other modification in the said judgment, which does not deserve to be recalled, modified or reviewed. Hence, the rest of the judgment will stand as it is.
32. The application is partly-allowed, only to the limited extent that the last sentence of paragraph 15 of the judgment dated 8-8-2014, rendered in Special Civil Application No.1207 of 2013, stands deleted.
33. Rule is made absolute, accordingly. No order as to costs.
Page 30 of 31 C/MCA/2216/2014 CAV JUDGMENT
(SMT. ABHILASHA KUMARI, J.) ARG Page 31 of 31