M/S Promotional Club Thru Sh. ... vs Chief Executive Officer ...
2021 Latest Caselaw 4943 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 27.01.2021
 
                                                                      Delivered on 13.4.2021
 
Case :- WRIT - C No. - 56046 of 2013
 

 
Petitioner :- M/S Promotional Club Thru Sh. Keshav Verma
 
Respondent :- Chief Executive Officer N.O.I.D.A. And Another
 
Counsel for Petitioner :- Rakesh Kumar, Chandra Kumar Rai, Deba Siddiqui, Kshitij Shailendra, Munesh K. Sharma
 
Counsel for Respondent :- C.S.C., Kaushalendra Nath Singh, Shivam Yadav
 

 
Hon'ble Naheed Ara Moonis, J.

Hon'ble Saral Srivastava,J.

(Delivered by Hon'ble Saral Srivastava, J.)

Order on Civil Misc. Review Application No.19 of 2020.

1. Heard Sri Manish Goyal, learned Senior Counsel assisted by Sri Shivam Yadav and Sri Kaushalendra Nath Singh, learned counsel for the NOIDA and Sri Kshitij Shailendra, learned counsel for the petitioner.

2. Learned counsel for the petitioner has filed counter affidavit to the review petition of NOIDA (respondent in writ petition). When learned counsel for the NOIDA was asked as to why no rejoinder affidavit has been filed to the counter affidavit, he submitted that since notices have not been issued and counter affidavit has not been invited, therefore, this is not the appropriate stage to file rejoinder affidavit.

3. Because of the submission raised by the learned counsel for the NOIDA, this Court has heard the review petition on admission stage ignoring counter affidavit.

4. The NOIDA has preferred the present review application for review of the judgement dated 31.07.2019 passed by this Court in Writ-C No.56046 of 2013 whereby this Court had directed the NOIDA to consider the two applications of petitioner for allotment of plots by law.

5. The brief facts, as stated in the judgement dated 31.07.2019 necessary for the present dispute, are that petitioner had made two applications nos.284 and 285 for allotment of plot of larger than 2000 square meter in Phase-II & Phase-III of the industrial area on the lease of 90 years in the open-ended scheme advertised by the NOIDA.

6. The registration was opened on 05.03.2010 and was closed on 05.07.2012. The petitioner submitted two applications complete in all respect for allotment of plots. The petitioner deposited the registration amount of Rs.8 lacs for each application. The applications of the petitioner were registered on 09.12.2011 during the period, the scheme was open.

7. The NOIDA refunded the registration amount of Rs.8 lacs to the petitioner vide separate letters dated 07.11.2012 stating that the scheme had closed. The petitioner being aggrieved by the action of NOIDA preferred the aforesaid writ petition praying for direction upon NOIDA-authorities to consider its application nos.284 & 285 and to allot the plots in its favour, and for quashing the illegal allotment made by NOIDA.

8. This Court on 23.01.2019 passed the following order in the writ petition:-

"Heard Shri Ravi Kiran Jain, learned Senior Advocate assisted by Shri Kshitij Shailendra & Ms. Deba Siddiqui appearing for the petitioner and Shri Shivam Yadav, learned counsel for the New Okhla Industrial Development Authority.

A counter affidavit has been filed, but in the counter affidavit it is not clear as to when the claim for allotment of industrial plots were closed by whose order and what was the target of the scheme as to how many allotment should be made and how many applications were considered and why the application of the petitioner has not been considered in spite of fulfilling all the criteria. It is further to be disclosed to the Court that who are the allottees and whether any plots are still available for allotment under the aforesaid scheme of 2010 pursuant to an advertisement dated 5.3.2010.

Shri Shivam Yadav, learned counsel appearing for the New Okhla Industrial Development Authority prays that he may be allowed three weeks' time to file a better affidavit by way of a supplementary counter affidavit brining on record the information sought by this Court and any other material that may be relevant for proper adjudication of the case.

As prayed, three weeks is allowed.

List after three weeks."

9. Pursuant to the aforesaid order, the NOIDA filed a supplementary affidavit titled as 'second supplementary counter affidavit', wherein it stated in paragraph no. 8 that there were 27 plots under the scheme and only 15 plots were allotted. In paragraph no. 9 of the affidavit, it is stated that total 90 applications were received under the scheme, out of which 65 applications were rejected and industrial plots were allotted to 15 applicants only. Thus, given the averments made in paragraph no.8 of the Supplementary Affidavit, 12 plots were not allotted and remained with NOIDA.

10. This Court again on 22.05.2019 directed the counsel for the NOIDA to take instructions if the applications of the petitioner can still be considered for allotment of plots from amongst the remaining unallotted plots. In response to the above direction of the Court, Sri Shivam Yadav learned counsel for the NOIDA submitted that 8 plots remained unallotted, and NOIDA shall consider the allotment of plots to the petitioner if so directed by the Court.

11. In the light of the aforesaid fact, this Court found that application of the petitioner was not considered for allotment of plots, and without the opportunity to the petitioner to appear before the Screening Committee, its registration money had been refunded.

12. The Court while allowing the writ petition, gave the following directions:-

"Accordingly, we are of the opinion that the petitioner is entitled to consideration of its two applications for the purposes of allotment in accordance with law.

In view of the aforesaid facts and circumstances, the petitioner is directed to re-deposit the registration amount of Rs.8 lakh each in respect of its two applications with NOIDA within a period of one month and on deposit of such registration amount the applications No.284 and 285 would be deemed to have been revived and the NOIDA would consider them in accordance with law for the purposes of allotment of the un-allotted remaining plots in Phase - II & III of the industrial area, NOIDA within a period of two months from the aforesaid deposit.

A writ of mandamus is issued accordingly and the writ petition stands allowed with no order as to costs."

13. It transpires that since NOIDA had delayed the processes of compliance of judgement dated 31.07.2019, therefore, the petitioner preferred Contempt Application (Civil) No.8214 of 2019. In Contempt Application, NOIDA took a stand that an order was passed after the screening of the petitioner's claim on 20.12.2019 in which the petitioner was found eligible for allotment of plots. The NOIDA vide letter dated 07.01.2020 informed the petitioner that there are as many as 93 plots available with the NOIDA and has sought information as to in which category the petitioner would like to apply.

14. It appears that in that process NOIDA found that incorrect facts in respect to unallotted plots have been stated by it in the second supplementary counter affidavit since relying upon said facts the Court recorded a finding that there were 27 plots available under the old scheme out of which 15 plots had been allotted and 12 plots remain unallotted. On discovery that incorrect fact has been stated in the second supplementary counter-affidavit, NOIDA took out the details of 27 plots which were available with it at the time of introduction of scheme 2009-10. It found that all 27 plots were allotted by the end of the year 2014.

15. In the aforesaid backdrop, the NOIDA thought that it could not allot plots to petitioner under the old scheme, and accordingly, it filed Civil Misc. Modification/Clarification Application No.17 of 2020 seeking modification/clarification of the judgement dated 31.07.2019 which was dismissed by this Court by order dated 01.10.2020.

16. It is only after dismissal of modification/clarification application, NOIDA has preferred the present review application. The facts stated by the NOIDA in paragraphs 5 to 13 of the affidavit filed in support of the stay application in review application are reproduced hereinbelow:-

"5. That on the basis of the 2nd Supplementary Counter Affidavit, this Hon'ble Court has came to a conclusion that since eight plots are still available with 'NOIDA' for the purposes of allotment, and also on the ground that the petitioner's claim was never considered by 'NOIDA', the Hon'ble Court has considered the aforesaid submission, which was made by Shri Shivam Yadav, Counsel representing 'NOIDA' on behalf of the 2nd Supplementary Counter Affidavit.

6. That the Hon'ble Court has discussed the scheme in which the application was made by the petitioner and further came to the conclusion that the petitioner's case since has not been considered by the screening committee, it is at least entitled for consideration of application by 'NOIDA'. It further directed for revival of the applications on the payment of Rs.08 Lacs per application and further directed 'NOIDA' to consider them in accordance with law for the purposes of allotment of the un-allotted remaining plots in Phase-II & Phase-III of industrial area of 'NOIDA' within a period of two months from the aforesaid deposit.

7. That in this backdrop, the 'NOIDA' has inquired into the matter and on inquiry it was found out that the instruction which was passed on by one of its officers, who sweared the 2nd Supplementary Counter Affidavit, was a false information, in fact when such affidavit was filed, all the plots under the old scheme i.e. 27 in numbers were allotted by the end of year 2014. What was available with the 'NOIDA' were newly carved out plots which were available for the purposes of allotment under the new schemes of 'NOIDA'.

8. That faced with such circumstances, the 'NOIDA' immediately took out the details of all the 27 plots, which were present with 'NOIDA' at the time of introduction of scheme of 2009-10 and it was found out that all 27 plots were allotted by the end of year 2014. For kind perusal of this Hon'ble Court, a copy of the list of all 27 plots is being filed herewith and marked as Annexure No.2 to this affidavit.

9. That when such incorrect affidavit was filed before the Hon'ble Court, the matter became important for the purposes of investigation and scrutiny at the end of 'NOIDA' and for the aforesaid reasons, 'NOIDA' has issued show-cause notice to the concerned erring officer on 12.06.2020 and has also referred his matter to the State Government. For kind perusal of this Hon'ble Court, the copy of the show-cause notice dated 12.06.2020, issued by the 'NOIDA' is being filed herewith and marked as Annexure No.3 to this affidavit.

10. That it is under these circumstances, and in this backdrop, the 'NOIDA' is filing present review application, wherein, if the aforesaid fact of 08 plots belonging to the new scheme would have been communicated to the Hon'ble Court, the Hon'ble Court would have directed the consideration of petitioner's claim in accordance with law and as per the prevailing schemes.

11. That there were 95 applicants against 27 plots, who were to be allotted in the said scheme of 2009-2010, however only 15 applicants were found eligible and they were allotted plots accordingly. It is pertinent to mention here that in case all the 95 applicants would have been found eligible they then also the authority would have to find a fair method of allotment, thus it is clear that merely applying for a plot does not mean that a plot should have been allotted to the person applying for same.

12. That it is pertinent to mention here that the plot for which the respondent applied were for an area of 3200 Square Meter and 4000 Square Meter out of 27 plots there were three plots of 4000 Square Meter and 8 plots of 3200 Square Meter, which were all allotted in different schemes till 2014.

13. That the whole controversy germinated because of the observation which took note of an affidavit filed by 'NOIDA' in which it was communicated that, at present 8 plots were available/un-allotted and it took note of a submission that 'NOIDA' will consider the allotment of plot if the Court so directs."

17. Learned Senior Counsel for the NOIDA has submitted that an order or judgement passed by the Court can be recalled for the ends of justice. He submits that in the instant case, the Court had proceeded to allow the writ petition on the basis of incorrect facts brought on record which has resulted in grave injustice to NOIDA, and the High Court being a Court of record and a Court of plenary jurisdiction inheres the power to prevent miscarriage of justice and correct the record of the Court. Accordingly, he submits that the review application is maintainable and Court can review its order to set the record straight.

18. On the submission about the scope of review, learned Senior Counsel for the NOIDA has placed reliance upon the following judgements:-

(i). S.Nagaraj Vs. State of Karnataka 1993 (Suppl.) (4) 595 (Paragraphs 18 & 19);

(ii). Sunil Vasudeva and Others Vs. Sundar Gupta & Others 2019 (17) SCC 385 (Paragraphs 19 & 28);

(iii). Mohammad Azizul Rahman Khan Vs. Mohammad Ibrahim AIR 1958 Alld. 19 (DB);

(iv). Sureshkumar Kanhaiyalal Jethlia Vs. State of Maharashtra and Others AIR 2001 (Bombay) 438 (DB) (Paragraphs 6 & 9).

19. He further contends that the NOIDA has acted diligently without any delay in bringing to the notice of the Court the correct facts, thus, the present case falls within the parameters of law laid down by the Court for review of judgement or order. He further submits that from the reading of the averments made by the NOIDA in the review application, it is evident that NOIDA has acted diligently and efficiently in bringing to the notice of the Court the correct facts. He submits that necessary pleadings in respect of the exercise of due diligence by the Noida to bring the said facts to the notice of the court has been stated in the affidavit, and the Court should take a liberal view in constructing pleadings. Accordingly, he submits that the present case falls within the parameters of O47R1 of C.P.C. and the law laid down by the courts for review of the judgment.

20. On the submission that the Court should adopt a liberal view instead of pedantic approach in constructing the pleading, Senior Counsel for the NOIDA has placed reliance upon the following judgements:-

(i). Ram Sarup Gupta (dead) by L.Rs. Vs. Bishun Narain Inter College & Others AIR 1987 SC 1242;

(ii). Bhagwati Prasad Vs. Chandramaul AIR 1966 SC 735;

(iii). Brij Behari Lal Budholiya Vs. IVth Additional District Judge, Jalaun at Orai and Others 2000 (2) ARC 456.

21. It is also urged that since there is no plot under the old scheme, therefore, the claim of the petitioner cannot be considered in the year 2019-2020 for allotment of plots under the old scheme.

22. Per contra, learned counsel for the petitioner contends that the fact no plot is available under the old scheme is not correct as according to him the plots are available with NOIDA under the Old Scheme. He submits that presuming without admitting that no plot is available with the NOIDA under the old scheme, this fact was in the knowledge of the NOIDA, and as it is not a new fact which took place after the judgement of this Court, therefore, no ground for review is made out and review application is misconceived.

23. Sri Kshitij Shailendra, learned counsel for the petitioner has placed catena of judgements on the scope of review, but only the following judgements relevant in the instant case are being referred:-

(i). State of Haryana and Others Vs. Mohinder Singh and Others 2003 (1) AWC 567 SC (Paragraphs 3 & 5);

(ii). Rajendra Kumar and Others Vs. Rambhai and Others AIR 2003 SC 2095 (Paragraph 5);

(iii). Lily Thomas etc. Vs. Union of India and Others AIR 2000 SC 1650 (Paragraphs 52, 55 & 57);

(iv). Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury AIR 1995 SC 455 (Paragraph 8);

(v). State of Haryana Vs. M.P. Mohla (2007) 1 SCC 457 (Paragraphs 27 & 28).

24. He further submits that one of the essential condition for review of the judgement is that the party seeking review has to establish that despite the exercise of due diligence, it could not bring on record the facts which it wants to bring on record through review application which is necessary for the ends of justice; but in the present case, the affidavit filed in support of the stay application lacks necessary pleading in respect of the fact that despite the exercise of the due diligence by the NOIDA, it could not bring aforesaid facts on record. He submits that the review application is liable to be dismissed at the threshold.

25. It is also urged that prayer made in the review application is also vague since the review application does not disclose that the NOIDA is seeking review of which part of the judgement.

26. In respect of submission that since NOIDA has failed to demonstrate that despite the exercise of due diligence, it could not bring correct facts on record, therefore, review application is not maintainable, learned counsel for the petitioner has placed reliance upon following judgements:-

(i). M/s Banaras Electric Light and Power Co. Ltd. Vs. The Collector, Varanasi and Others AIR 1982 Alld. 355 (DB) (Paragraphs 9 & 11);

(ii). Satya Prakash Pandey Vs. Dev Brat Mishra 2011 (3) AWC 2512 (Paragraphs 9 & 10);

(iii). Divisional Superintendent Northern Railway Allahabad Vs. Second Additional District Judge, Allahabad and another 1997 AWC (Supp.) 298 (Paragraph 10).

27. We have heard learned counsel for the parties and perused the record.

28. Before adverting to the merits of the case, it would be apposite to refer to the judgement of the Apex Court relied upon by the learned counsel for the petitioner laying down parameters within which the Court can review its judgement. The judgements relied upon by the learned Senior Counsel for NOIDA in support of his contention regarding the scope of review shall be dealt with at the appropriate place.

29. In the case of State of Haryana and Others (supra), the High Court disposed of the writ petition as infructuous by giving certain directions. The respondents-Mohinder Singh and others preferred review application, in which certain clarification had been made by the High Court. The order passed by the High Court on the said review-application was assailed by the State of Haryana in Special Leave Petition. The Apex Court held that a judgement may be opened to review inter- alia if there is a mistake or an error apparent on the face of the record. Paragraphs 3 & 5 of the aforesaid judgement are being reproduced hereinbelow:-

"3. Learned additional solicitor general appearing for the appellant-state strongly contended that the High Court could not have passed the order under challenge in the purported exercise of its powers of review and the order under challenge is liable to be set aside on this ground alone, dehors even the infirmities in the ultimate decision on merits. Reliance has been placed in support thereof on the decision in Parsion Devi and others v. Sumitra Devi and others JT 1997 (8) SC 480, wherein it has been observed as follows:-

"9. Under Order XLVII, Rule 1, C.P.C., 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 of review under Order XLVII, Rule 1, C.P.C. In exercise of the jurisdiction under Order XLVII, Rule 1, C.P.C., 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."

10. Considered in the light of this settled position we find that Sharma, J., clearly overstepped the jurisdiction vested in the Court under Order XLVII, Rule 1 C.P.C. The observations of Sharma, J., that "accordingly, the order in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided" and as such the case was covered by Article 182 and not Article 181 cannot be said to fall within the scope of Order XLVII, Rule 1 C.P.C. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction."

5. We have carefully considered the submissions of learned counsel appearing on either side. The Division Bench in the High Court, in our view, completely overstepped the limits of its review jurisdiction and on the face of it appears to have proceeded as though it is a rehearing of the whole petition which had been earlier finally disposed of. It has often been reiterated that the scope available for a litigant invoking the powers of review is not one more chance for rehearing of the matter already finally disposed of. The course adopted in this case by the High Court appears to be really what has been held by this Court to be not permissible. On this ground alone, without expressing any views on the merits of the claim, the order of the High Court dated 14.5.1999 is set aside and the original order dated 14.5.1998 shall stand restored. While noticing some of the submissions made on merits by either side, we consider it appropriate to place on record that even the learned counsel for the appellant could not seriously dispute the position that the respondents would at any rate be entitled to be placed on the 'first higher standard pay scale' and that to this extent atleast, the respondents' claim would deserve consideration. The appeals are allowed in the above terms. No order as to costs."

30. In the case of Rajendra Kumar and Others (supra), claimants-appellants preferred an appeal for enhancement of compensation. The learned Single Judge enhanced the compensation. Being dissatisfied with the amount of compensation awarded by the learned Single Judge, claimants preferred an appeal before the High Court and Division Bench of the High Court by judgement dated 09.08.1999 enhanced the compensation amount to Rs.2,55,000/- with 12% interest. Thereafter, on the review application preferred by the Oriental Insurance Company, the amount of compensation was reduced to Rs.1,83,000/- by order dated 03.04.2001 which was assailed by the claimants-appellants before the Apex Court. The Apex Court while setting aside the judgement and order of the High Court in review application held in paragraphs 5 & 6 as under:-

"5. On perusal of the order under challenge it is clear that the High Court without considering the question whether the judgment/order sought to be reviewed suffered from any error, entered upon the exercise of reappreciating the evidence and on such reappreciation of evidence redetermined the compensation by reducing the amount to the extent noted earlier. 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 judgment/order cannot be disturbed.

6. Coming to the merits of the case, suffice it to say that on perusal of the order, which has been reviewed by the order under challenge did not suffer from any serious illegality, which called for correction by exercise of review jurisdiction. It is relevant to note here that the deceased was holding the post of Supervisor in Women and Child Welfare Department, Government of Karnataka at the time of her death and she was aged about 48 years at that time. The salary drawn by the deceased, as evident from the salary certificate produced as additional evidence was Rs. 2,570/- p.m. The multiplier, which had been accepted by the Division Bench in the previous order, was 10. In the circumstances of the case, multiplier of 10 was rightly taken. Thus on merit also no interference with the order was called for."

31. In the case of Lily Thomas etc. (supra) the appellants sought review of the judgement of the Apex Court in the case of Sarla Mudgal (Smt.) President 'Kalyani' Vs. Union of India, the Apex Court held that Court can review its judgement or order if there is a mistake apparent on the face of the record and if an error which has to be searched and fished out is not an error apparent on the face of the record. Paragraphs 52, 55 & 57 of the said judgement are being reproduced hereinbelow:-

"52. 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 denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi. v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj v. State of Karnataka 1993 Supp. (4) SCC 595 held:

"Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice. In Prithwi Chand Lal Choudhury v. Sukhraj Rai, AIR 1941 FC 1 the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117 that an order made by the Court has final and could not be altered......

55. It follows, therefore, that 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 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 of 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 practised. However, this Court in exercise of its powers 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.

57. Otherwise also no ground as envisaged under O.40 of the Supreme Court Rules read with O.47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal's case (1995 AIR SCW 2326: AIR 1995 SC 1531: 1995 Crl LJ 2926). It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal's case. We have also not found any mistake or error apparent on the face of the record requiring a review. 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. It must be an error of inadvertence. No such error has been pointed out by the learned Counsel appearing for the parties seeking review of the judgment. .......

Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Art.137 read with O.40 of the Supreme Court Rules and O.47, Rule 1 of the C.P.C. for reviewing the judgment in Sarla Mudgal 's case (1995 SC 1531: 1995 Crl LJ 2926). The petition is misconceived and bereft of any substance."

32. In the case of Smt. Meera Bhanja (supra) the Apex Court relying upon the judgement of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma, AIR 1979 SC 1047 held that there are certain limitations to the exercise of the power of review by the High Court and the power of review is not to be confused with the power of appeal. Paragraph 8 of the said judgement is being reproduced hereinbelow:-

"8. It is well settled that the 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, C.P.C. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047, speaking through Chinnappa Reddy, J., has made the following pertinent observations (para 3):

"It is true there is nothing in Article 226 of the Constitution to preclude the 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 power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."

Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent 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 points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:

"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."

33. In the case of M.P. Mohla (supra), it is held that new issues cannot be raised in the review petition. The review is not allowed under the garb of seeking clarification. Paragraphs 27 & 28 of the said judgement are being extracted herein below:-

"27. A review petition filed by appellants herein was not maintainable. There was no error apparent on the face of the record. The effect of a judgment may have to be considered afresh in a separate proceeding having regard to the subsequent cause of action which might have arisen but the same by itself may not be a ground for filing an application for review.

28. Mr. Srivastava submitted that an application for review in effect and substance was an application for clarification of the judgment of the High Court. We do not think so. An application for clarification cannot be taken recourse to to achieve the result of a review application. What cannot be done directly, cannot be done indirectly. (Ram Chandra Singh v. Savitri Devi)."

34. On reading of aforesaid judgements and principles enunciated by the Apex Court about the power of review of High Court, it can safely be culled out that though there is nothing in Article 226 of Constitution of India which precludes the High Court from exercising the power of review since every Court of plenary jurisdiction inheres the power to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But Apex Court held that there are definitive limits to the exercise of the power of review which are as follows:-

(i). 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 review or could not be produced by him at the time when the order was made;

(ii). It may be exercised where some mistake or error apparent on the face of the record is found;

(iii). It may also be exercised on an analogous ground.

35. While limiting the power of review by the High Court, the Apex Court in the aforesaid judgements have also held that the power of review may not be exercised on the ground that the decision was erroneous on merit. A power of review is not to be confused with the appellate power since the power to correct all manner of errors committed by the subordinate court lies with the Appeal Court. The Apex Court while explaining as to when an error committed by the court would entitle the parties to seek the review of the judgment explicated that error must be one which should occur at the first site and not an error that can be found by adopting the process of reasoning or which has to be fished out and searched.

36. It is also settled in law that while exercising the power of review, Court is not acting as an appellate court and cannot rehear the matter.

37. In the light of principles enunciated by the Apex Court limiting the power of review of the High Court, the argument of learned Senior Counsel for the NOIDA that the Court can exercise its power of review to correct the record of the court based on facts brought on record through review petition for the ends of justice is analysed.

38. In the case in hand, the Court has proceeded to decide the case on the basis of the pleadings and record. This Court by order dated 23.01.2019, extracted above, directed the NOIDA to give details as to who are the allottees and whether any plot is still available for allotment under the scheme of 2010 pursuant to an advertisement dated 05.03.2010.

39. In response to the said affidavit, NOIDA filed a second supplementary counter affidavit in which in paragraph 8, it has made the specific assertion that there were total 27 plots available under the old scheme at a given point of time. In paragraph 9, it further averred that total 95 applications were received out of which 65 applications were found unsuccessful and 15 plots were allotted meaning thereby that 12 plots remained unallotted under the old scheme.

40. This Court again on 22.05.2019 passed an order directing learned counsel for the NOIDA to seek instruction as to why petitioner was not called for interview coupled with the fact that some plots remained with the NOIDA for allotment which may be considered for allotment to the petitioner. Under the order of this Court dated 22.05.2019, learned counsel for the NOIDA again on instruction submitted that there are still 8 plots with the NOIDA and claim of the petitioner can be considered if so directed by the Court.

41. The aforesaid statement of learned counsel for the NOIDA based on the instruction of NOIDA has been recorded by the Court in the judgement while allowing the writ petition. The relevant extract of the judgement dated 31.07.2019 wherein this Court has recorded the aforesaid statement is reproduced hereinbelow:-

"Treating the petitioner to be the two applicants whose representatives were not called for interview and the fact that the counsel for the NOIDA accepted that there exists no reason why its representative was not called for interview, the Court on 22.5.2019 directed the counsel for the NOIDA to take instructions if the applications of the petitioner can still be considered for allotment of plots from amongst the remaining unallotted plots. In response to the above direction of the Court Sri Shivam Yadav submits that 8 plots still remain unallotted and that the NOIDA will consider the allotment of plots to the petitioner if the Court so directs.

42. Thereafter, Court proceeded to decide the writ petition and passed an order for consideration of the claim of the petitioner.

43. Now by the review application, the petitioner wants to correct the facts which have been wrongly stated in the second counter affidavit on the ground that if incorrect facts remain on record, that would result in grave injustice to the NOIDA.

44. It is further averred in the review application that the concerned officer, who had supplied incorrect instructions to the counsel, was issued a show-cause notice on 12.06.2020 which is Annexure 4 to the review application. A perusal of show cause notice reveals that it was issued as a formality to make out a case for review as no action has been taken against the officer under the show cause notice by the NOIDA. When learned counsel for NOIDA was confronted as to what disciplinary action is proposed against the concerned officer, he submitted that power to initiate disciplinary proceeding is with the State Government, but he could not place any material on record whereby NOIDA has recommended to the State Government for taking disciplinary action against the officer concerned whose negligence has put the NOIDA in a precarious situation.

45. Facts which NOIDA wants to bring on record by review application if allowed to be brought on record through review application would reopen the rehearing of the case inasmuch as if NOIDA is allowed to take a total contrary stand that it has no plots to offer to petitioner under the scheme 2010, a new issue would crop up as to whether the assertion as regards to the non-availability of plots with NOIDA under the old scheme is correct or not for which rehearing of the matter is required, thus, it is evident that under the garb of review of the judgement, NOIDA is trying to reopen the matter which is beyond the scope of review.

46. Learned counsel for the NOIDA could not point out from the judgement as to what is the patent error committed by the Court to review the judgement.

47. Now, this Court deals with the judgements on the scope of review relied upon by the learned counsel for the NOIDA and states the reasons as to why those judgments do not come to the rescue of NOIDA.

48. In the case of S.Nagaraj (supra), the fact which led to the review or reconsideration of earlier orders passed by the Apex Court was peculiar. The order passed by the Apex Court in the said case had created right in favour of stipendiary graduates, who succeeded in getting orders for absorption of all of them numbering thousands and jumped in higher scale without any adjudication of their claims on merits either in the special leave petition or even in the writ petition on assumption drawn from a vague and incorrect affidavit filed by the State. The order passed by the Apex Court in the said case had resulted in the grave injustice to those stipendiary graduates who had been selected by appearing in the competitive examination conducted by the Commission for the post of Second Division Assistants because there were no vacancies amongst First Division Assistants and they would not only become junior to petitioners, but they may never get a chance to be promoted. Paragraph 14 of the said judgement is being extracted hereinbelow:-

"14. Despite the failings of the Government to apprise this Court, timely of correct facts, what has been agitating us how to even the balance. On one side are the orders of this Court passed on vague and incomplete affidavit, creating right and hope in favour of 5000 stipendiary graduates to be absorbed as First Division Assistants with some of them even deriving the benefit whereas on the other hand there are others the likely injustice to whom due to implementation of the orders had already been explained in the affidavit of the Secretary, the Deputy Secretary and in the Writ Petition filed by different section of the employees. No less is the hurdle arising out of principle of finality of orders and the binding nature of directions issued by this Court. But what stands above all which persuaded us to take a fresh look is the injustice inherent in it. Many of the stipendiary graduates who either appeared in the competitive examination conducted by the Commission, under 1982 Rules or were selected under 1987 Rules for the post of Second Division Assistants because there were no vacancies amongst First Division Assistants would not only become junior to the petitioners but they may never get a chance to move up higher on the ladder as the rules of 1982 and 1987 specifically provide that a stipendiary graduates appointed under the rule would not be eligible for recruitment again under it. Further if a stipendiary graduate is entitled by virtue of graduate qualification to be absorbed as First Division Assistant then Rule 3 of 1982 Rules permitting absorption of stipendiary graduates both against Second and First Division Assistants is rendered meaningless. Nor there can be any rationale to disregard the claim of those large number of stipendiary graduates who are working as Second Class Assistants. Moreover possessing minimum qualification prescribed under rules does not mean appointment on that post. It only provides eligibility. For instance a holder of SSLC certificate cannot be considered as eligible for the post of First Division Assistant as the minimum qualification for it is graduate. A graduate can apply for either. But being graduate does not mean that any stipendiary graduate is liable to be absorbed as First Division Assistant. No employees can claim higher post or scale of pay commensurate with his qualification. It may be ideal but not practical. Appointment of a graduate or a post-graduate to a post which carries lower qualification by itself, does not amount to exploitation nor it is violative of any constitutional guarantee or principle."

49. In such a piquant situation, the Apex Court in paragraphs 18 & 19 has held that the Court can always rectify its error if it finds that order was passed under a mistake and would result in irreparable injury to any party. Paragraphs 18 & 19 of the judgement of Apex Court in the case of S.Nagaraj (supra) are being extracted herein below:-

"18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which one of us (Sahai, J.) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistants due to State's failure to bring correct facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue.

19. Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithvi Chand Lal Choudhury v. Sukhraj Rai, the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh, that an order made by the Court was final and could not be altered:

".....nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies."

Basis for exercise of the power was stated in the same decision as under:

"It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard."

Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed and substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."

50. In the case of S.Nagaraj (supra) because of filing of a vague affidavit by the State Government, the Apex Court passed an order which, if implemented, would have resulted in grave injustice to those who have been selected on the post of Second Division Assistants as they would not get any chance to move higher ladder as the petitioners in the said case without getting selected through competition as per the procedure prescribed for appointment on the post of First Division Assistants had blocked the avenues of promotion of selected candidates from the post of Second Division Assistants to the post of First Division Assistants.

51. In such circumstances, the review petition was referred to the larger Bench because injustice has been mated out to one set of the person if the order of the Court is not revised or reviewed. It would be apt to reproduce the starting paragraph of the judgement of B.P. Jeevan Reddy, J:-

"These matters were referred to a three-judge-Bench so that it can, if necessary, revise, review and recall the earlier orders of this Court made by a Bench of two Judges or a Bench of three Judges, as the case may be. The reference to three-Judge Bench was made because it was felt by my learned brother Sahai, J. and myself that some of the earlier orders of this Court may require to be reconsidered."

52. There is no quarrel with the proposition of law laid down by the Apex Court in paragraphs 18 & 19 of the judgement of S.Nagaraj (supra), but said judgement was rendered in a very peculiar fact which is not the case here.

53. The Apex Court in the case of Sunil Vasudeva and Others (supra) has affirmed the order of the High Court whereby the High Court has recalled the order by which it had relegated the parties to the remedy of the civil suit in respect of property situated at Delhi without noticing Section 293 of Income Tax Act which put a complete bar of filing suit in any civil court against revenue/income tax authority. In such a fact situation, the Apex Court found that High Court has rightly reviewed its earlier order. In this respect, the Apex Court in paragraph 28 of the judgement has laid down parameters on which the review petition can be entertained. Paragraph 28 of the said judgement is being reproduced hereinbelow:-

"28. The basic principles in which the review application could be entertained have been eloquently examined by this Court in Kamlesh Verma v. Mayawati, (2013) 8 SCC 320 wherein this Court held as under:-

"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" have been interpreted in Chhajju Ram v. Neki 1922 SCC Online PC 11 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius 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 v. Sandur Manganese & Iron Ores Ltd. (2013) 8 SCC 337.

20.2. 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."

54. The fact situation of Sunil Vasudeva and Others (supra) is not akin to the fact situation of the present case, and accordingly, the said judgement is not applicable in the facts of the present case.

55. In the case of Mohammad Azizul Rahman Khan (supra), the Court issued a commission for examination of witness in Pakistan without noticing the fact that there was no reciprocal arrangement between India and Pakistan with regard to the examination of witnesses on commission. In such a fact situation, the Court reviewed its order for appointing commission for examining the witness in Pakistan which was upheld by this Court holding that Court is competent to undo something the effect of which was likely to cause embarrassment if put in effect. Thus, said case is distinguishable on facts, therefore, the law propounded in the said judgement has no application in the present case.

56. The case of Sureshkumar Kanhaiyalal Jethlia (supra) was also being rendered in a different fact situation since in the said case, the order removing the President of Municipal Council from his post and disqualify him for a period of six years was upheld by the High Court. However, on the discovery of certain facts which could not be placed at the time of the hearing, it was revealed that charge no.2 which was the basis of removal of the petitioner in the said case was based upon an assumption which in fact did not exist, accordingly, High Court reviewed its order and set aside the order upholding the removal of the petitioner. Paragraph 9 of the said judgement is being extracted hereinbelow:-

"9. The result of dismissal of writ petition by upholding finding recorded by the respondent No. 2 on the charge No. 2 has dethroned the petitioner from the post of President and also denied him to be a Councillor. Not only that but he is debarred from contesting the election for the post of Councillor for the next six years. If the position is allowed to be perpetrated, by upholding as proved, a charge levelled which could not have been levelled but for incorrect assumption of fact, would certainly result into miscarriage of justice.

The review petition, therefore, in the light of observations of the Apex Court in para No. 170, in the matter of Common Cause, a registered Society (AIR 1999 SC 2979) (supra) will have to be allowed. Consequently, the judgment delivered in Writ Petition No. 5022 of 2000 dated 16-12-2000 will have to be modified.

The writ petition will also have to be allowed, since the action under Section 55-A read with S. 55-B(b) would be unsustainable on the basis of faulty charge No. 2, the same having been already held unsustainable on the basis of remaining two charges."

57. Thus, the case of Sureshkumar Kanhaiyalal Jethlia (supra) is different from the facts of the present case, accordingly, this judgment also does not come to the aid of the NOIDA.

58. The facts of the present case, detailed above, clearly reflects that NOIDA had been given the opportunity twice to place correct facts before the Court in respect of the availability of plots under the old scheme, but NOIDA chooses to remain dormant and had slept over the matter. It came out of slumber only when the sword of contempt lay over its head.

59. At this stage, one more fact is to be noticed that NOIDA does not dispute the fact in the review application that the application of the petitioner was ignored for no fault of him nor he was called for interview. Now, under the garb of review petition, NOIDA wants rehearing of the writ petition to frustrate the right of allotment of plot to the petitioner accrued to him in the year 2010 on the ground that correct facts could not be placed before the Court. We are afraid that such a ground is not open to NOIDA to seek the review of a judgment to defeat the lawful right of the petitioner.

60. Now coming to the second submission of learned Senior Counsel for the NOIDA that despite the exercise of due diligence, the facts stated in the review petition regarding non-availability of plots under the old scheme could not be brought on record, therefore, the present review petition falls within the parameters of Order 47 Rule 1 of C.P.C., hence, it is a fit case where the Court should exercise its power to review its judgement.

61. Learned Senior Counsel for the NOIDA submits that there are adequate pleadings in the affidavit which clearly demonstrates that despite the exercise of due diligence by the NOIDA, it could not bring on record the correct fact that no plot is available with the NOIDA under the old scheme. Accordingly, he submits that Court should adopt a liberal approach and not a pedantic approach in constructing the pleading. To buttress the said submission, he has placed various paragraphs of the affidavit to contend that if the pleadings of the affidavit are read as a whole, it is discernible that ample pleading in respect of the exercise of due diligence exercised by NOIDA has been stated. In support of his contention, he has placed reliance upon paragraphs 6 & 7 of the judgement of Apex Court in the case of Ram Sarup Gupta (dead) by L.Rs. (supra) which are being extracted herein below:-

"6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the license was irrevocable as contemplated by S.60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v. Shri Chandramaul, (1966) 2 SCR 286 : (AIR 1966 SC 735) a Constitution Bench of this Court considering this question observed (at p.738 of AIR):

"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."

7. Before we examine the pleas raised by the defendants in their written statement it is necessary to keep in mind that the plaintiff himself stated in paragraph 4 of the plaint that the property in dispute has been in occupation of the school as licensee under the permission of Raja Ram Kumar Bhargava erstwhile owner of the property. Defendants 11 to 17 in paras 10 to 16 of their written statement while dealing with the question of license expressly stated that the school had made pucca constructions and had been making various substantial additions and alterations in the building without any objection. Raja Ram Kumar Bhargava had given away the premises in dispute permanently to the school and they have been in occupation of the premises for the last 20 years and during that period they have been making substantial additions and alterations in the building including replastering, re-flooring etc., by incurring heavy expenses. In para 18 of their written statement they pleaded that the license was coupled with a grant and in any case it was a permanent and irrevocable license in favour of the school and the same could not be revoked by the plaintiff. The pleadings so raised make it apparently clear that the defendants had raised a specific plea that the license was coupled with grant, it was a permanent and irrevocable license and in pursuance of the licence the licensee had carried out work of permanent character incurring expenses for the advancement of the purpose for which the license had been granted. In fact, issue numbers 4, 5 and 6 framed by the trial court relate to the question whether license was irrevocable. The issues so framed involved the question of irrevocability of the license under both the clauses (a) and (b) of the S.60 of the Act. The plaintiff went to trial knowing fully well that defendants' claim was that the license was irrevocable, on the ground that they had made permanent constructions and incurred expenses in pursuance of the license granted for the purpose of school. The plaintiff knew the case he had to meet, and for that purpose he produced Raja Ram Kumar Bhargava in evidence in support his plea that the license was a simple license and it was not irrevocable as pleaded by the defendants. This question has been considered in great detail by T.S. Misra, J. and we are in agreement with the view taken by him."

62. The other judgement on the said point relied upon by the learned Senior Counsel for the NOIDA is Bhagwati Prasad Vs. Chandramaul AIR 1966 SC 735. Paragraphs 10, 12 & 14 of the said judgement are being reproduced hereinbelow:-

"10. But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issue, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.

12. Turning then to the pleadings and evidence in this case, there can be little doubt that the defendant knew what he was specifically pleading. He had admitted the title of the plaintiff in regard to the plot and set up a case as to the manner in which he spent his own money in constructing the house. The plaintiff led evidence about the tenancy set up by him and the defendant led evidence about the agreement on which he relied. Both the pleas are clear and specific and the common basis of both the pleas was that the plaintiff was the owner and the defendant was in possession by his permission. In such a case the relationship between the parties would be either that of a landlord and tenant, or that of an owner of property and a person put into possession of it by the owner's licence. No other alternative is logically or legitimately possible. When parties led evidence in this case, clearly they were conscious of this position, and so, when the High Court came to the conclusion that the tenancy had not been proved, but the defendant's argument also had not been established, it clearly followed that the defendant was in possession of the suit premises by the leave and licence of the plaintiff. Once this conclusion was reached, the question as to whether any relief can be granted to the plaintiff or not was a mere matter of law, and in deciding this point in favour of the plaintiff, it cannot be said that any prejudice had been caused to the defendant.

14. In support of its conclusion that in a case like the present a decree for ejectment can be passed in favour of the plaintiff, though the specific case of tenancy set up by him is not proved, the High Court has relied upon two of its earlier Full Bench decisions. In Abdul Ghani v. Mt. Babni (1903) ILR. 25 All. 256 (FB), the Allahabad High Court took the view that in a case where the plaintiff asks for the ejectment of the defendant on the ground that the defendant is a tenant of the premises, a decree for ejectment can be passed even though tenancy is not proved, provided it is established that the possession of the defendant is that of a licensee. It is true that in that case, before giving effect to the finding that the defendant was a licensee, the High Court remanded the case, because it appeared to the High Court that that part of the case had not been clearly decided. But once the finding was returned that the defendant was in possession as a licensee, the High Court did not feel any difficulty in confirming the decree for ejectment, even though the plaintiff had originally claimed ejectment on the ground of tenancy and not specifically on the ground of licence. To the same effect is the decision of the Allahabad High Court in the case of Balmakund v. Dalu (1903) ILR 25 All. 498 (FB)."

63. The last judgement relied upon by the learned Senior Counsel for the NOIDA on the said point is Brij Behari Lal Budholiya Vs. IVth Additional District Judge, Jalaun at Orai and Others 2000 (2) ARC 456. Paragraphs 7 & 8 of the said judgement are being extracted herein below:-

"7. It is well settled that no party should be allowed to succeed on technical objection relating to the pleading. This Court and Supreme Court consistently held that in case parties are fully aware of the controversy and the issues required to be adjudicated between the parties and if the parties had led evidence being conscious of those issues then in that case short coming in the pleadings will not vitiate the judgment. Pleadings have a definite role, i.e., to make aware the other side of the specific case which the other side has to meet. If a party is fully aware otherwise, led all the evidence as he desired and contested the case without raising objection at the first opportunity. Judgment passed by the Court below should not be allowed to be assailed on this ground.

8. The view taken by me is supported by the ratio decidendi laid down in the case of Sardul Singh v. Pritam Singh, 1999 (36) ALR 1."

64. It is no doubt true that Courts have time and again held that Court should not adopt the pedantic approach in constructing pleading. In a given case it may be that pleadings are not expressed in words that may not expressly make out a case by the strict interpretation of the law. In such a case, the Court must ascertain the substance of the pleadings to determine the question. The Court should not give undue emphasis on the form of pleadings rather, it should find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they contested the trial on those issues by producing evidence, in that event, it would not be open to a party to raise the question of absence of pleadings.

65. Now, on the touchstone of the principles laid down by the Apex Court as well as by the High Court in respect of the construction of pleadings, the fact of the present case is being tested.

66. We have already extracted above the relevant paragraphs of the affidavit filed in support of the review application. A perusal of the averments in those paragraphs reveals that it lacks necessary pleadings as regards the exercise of due diligence adopted by the NOIDA in bringing the fact of non-availability of plots under the old scheme on record. At this stage, it would be apt to refer to the dictionary meaning of the word 'diligence'.

67. Chambers Encyclopedic English Dictionary explains the meaning of 'diligence' as "careful and hard-working effort.".

68. According to the Lexicon the Encyclopedic Law Dictionary with Legal Maxims Latin Terms Words & Phrase, 'Diligence' is such care and prudence as is usually exercised by persons of common or average care and prudence.! "Diligence', when the law imposes it as a duty, implies that we shall do those things we ought to do, and leave undone those things we ought not to do. It requires action, as well as forbearance to act."

69. The Black's Law Dictionary Eighth Edition defines the word 'diligence' as 'Care, caution; the attention and care required from a person in a given situation.'

70. According to The Black's Law Dictionary, 'due diligence' means"The diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation."

71. The Apex Court in the case of Chander Kanta Bansal Vs. Rajinder Singh Anand (2008) 5 SCC 117 while interpreting the word 'diligence and due diligence' in the context of the proviso to Order 6 Rule 17 of C.P.C. held as under:-

"16. The words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.

17. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so-called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness."

72. From aforesaid, it is evident that when the law imposes a duty upon a person to act with due diligence which means that his action should exhibit candour which a prudent man would exercise in accomplishing his own affairs.

73. Now, in the present case, reading of affidavit filed in support of the review application does not disclose that there is any pleading concerning due diligence exercised by NOIDA to bring on record the fact of non-availability of plots, rather facts on record reveal that it slept over the matter as is evident from its action inasmuch as this Court twice granted opportunity by orders dated 23.01.2019 and 22.05.2019 to apprise the Court about the number of plots available with NOIDA under the old scheme, and on both the occasions, it informed the court that there are plots available under the old scheme. It woke up from slumber only when it found itself in an undefendable position after initiation of contempt proceedings by the petitioner.

74. This Court in the case of M/s Banaras Electric Light and Power Co. Ltd. Vs. The Collector, Varanasi and Others AIR 1982 Alld. 355 (DB) held that if exercise of due diligence adopted by parties seeking review is not stated in the affidavit, the review petition would not lie. Paragraphs 9 & 11 of the said judgement are being reproduced hereinbelow:-

"9. Coming to the facts of the instant case it would be seen that here the review is sough not on the ground that a glaring omission or a patent mistake or like grave error has crept in earlier by judicial infallibility nor on the ground that this Court committed by grave and palpable error in deciding the writ petition. It has been filed only on the ground of discovery of new and important evidence. As has been emphasised by the Supreme Court in A.T. Sharma's case (supra) which has been followed by the Full Bench of the Gujarat High Court in the case of Gujarat University (supra) before a review application can be entertained this ground it has to be established by the applicant in the review application that the additional evidence which is sought to be relied on was "after the exercise of due diligence 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. In the instant case there is no averment to this effect either in the affidavit filed in support of the review application or even in the rejoinder affidavit. In the affidavit filed along with the review application what has been stated is that after the judgment was delivered in the writ petition the Superintending Engineer, Electricity Supply Undertaking, State Electricity, Varanasi had the occasion to appear before the Special Officer (Electricity) to the State Government and in that connection while wading through the old files in the office of the Electrical Inspector to the State Government he found the document referred to in the review application. As pointed out above the sheet anchor of the review application is a notice sent by the petitioner to the State Government and the U.P. State Electricity Board itself on January 24, 1972. This notice, therefore, was apparently with the U.P. State Electricity Board which is an applicant in the review application even at the time when the counter-affidavit in the writ petition was filed and the writ petition was heard and decided. The only averment in this behalf in the rejoinder affidavit is that the officers dealing with the case had no knowledge and had no occasion to know about this notice given by the petitioner-Company and, therefore, could not bring it to the notice of this Court at the time when the writ petition was heard. It would thus be seen that neither in the affidavit filed along with the review application nor in the rejoinder affidavit it has been stated that even after exercise of due diligence these documents were not within the knowledge of respondents 2 and 3 or could not be produced by them at the time when the writ petition was heard and decided. The requirement of the "exercise of the diligence" at the appropriate "time constitutes the very basis for maintaining a review application filed on the ground of discovery of new and important matter of evidence. In Pyare Lal v. Chhotey Lal (AIR 1942 All. 82), while dealing with the power of review under O.47 R.1, C.P.C. on the basis of discovery of new or important evidence, it was held that O.47, R.1, C.P.C. requires a high standard of diligence and that the person who wants a review should prove strictly diligence he claims to have exercised. The same view was taken in an earlier decision in Kariya Mahto v. Ram Sarup (AIR 1987 All.107).

11. In view of the foregoing we are of the opinion that no case has been made out for entertaining the present review application. In this view of the matter we find it unnecessary to go into the second objection raised by counsel for the petitioner that even on merits no case for review has been made out."

75. In the case of Divisional Superintendent Northern Railway Allahabad Vs. Second Additional District Judge, Allahabad and another 1997 AWC (Supp.) 298 this Court held that review under Order 47 Rule 1 of C.P.C. would lie only if one of the grounds mentioned in Order 47 Rule 1 of C.P.C. is made out. Paragraph 10 of the said judgement is being extracted hereinbelow:-

"10. Now the question arises if the impugned order passed on a review application was well within jurisdiction of the IInd Additional District Judge or by exercising the review powers in the instant case, the learned IInd Additional District Judge has overstepped jurisdiction vested in him. It is well-settled that a review under Order XLVII, Rule 1, C.P.C. can only lie if one of the grounds mentioned is made out. Order XLVII, Rule 1, C.P.C. permits review only when there are 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. It is well-settled that while exercising powers under Order XLVII, Rule 1, C.P.C., the reviewing court does not sit in appeal on the order of his predecessor and cannot reassess the evidence. It is also well-settled that the review powers cannot be exercised on the ground that the earlier decision was erroneous on merit or that a different view was possible than the one taken in the earlier decision. A reference in this regard may be made to the cases of Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhury, JT 1994 (7) SC 536; Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others, AIR 1979 SC 1047 ; Satyanarayan Laximinarana Hegde and others v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 and M/s. Thunabhadra Industries Ltd. v. Government of A.P., AIR 1964 SC 1372."

76. Thus, from the facts detailed above, it is evident that the affidavit filed in support of the review application lacks necessary pleadings in respect of the exercise of due diligence adopted by the NOIDA to bring the fact regarding non-availability of plots under the old scheme on record. The submission of learned Senior Counsel for the NOIDA that if the affidavit is read as a whole, it demonstrates that there are ample pleadings in respect of the exercise of due diligence by the NOIDA to bring on record correct facts is misconceived.

77. It is also pertinent to mention that from the pleadings and prayer made in the review application, it is not clear as to which portion of the judgment is erroneous which calls for the review. The prayer is totally vague and if the facts which NOIDA wants to bring on record through review application is allowed, that would reopen the hearing of the case which is not the scope of the review petition.

78. It is also urged by the learned Senior Counsel that since there is no plot available with NOIDA under the old scheme, therefore, the claim of the petitioner cannot be considered in the year 2019-2020 under the old scheme.

79. The said submission cannot be accepted as it is beyond the scope of the review petition since this was not the case of the NOIDA in the counter affidavit. Another reason why this plea cannot be permitted to be raised by review petition is that for adjudication of said issue, the whole petition is to be reheard as fresh which is not the scope of the review petition. Accordingly, the said contention being misconceived is rejected.

80. Thus, for the reasons given above, the review petition lacks merit and is accordingly, dismissed with no order as to cost.

Order Date :-13.4.2021

Sattyarth

(Saral Srivastava, J.) (Naheed Ara Moonis, J.)

This judgment is being delivered in terms of the provisions as contained in Chapter-VII Rule 1 (2) of the Allahabad High Court Rules, 1952.

(Saral Srivastava, J.)

13.4.2021