Ramesh Kumar Sharma vs M/S Gool Poput And Others
2021 Latest Caselaw 9202 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR 
 
Reserved on 23.03.2021
 
                                                                             Delivered on 02.08.2021
 
								
 
Case :- SECOND APPEAL No. - 176 of 1989
 

 
Appellant :- Ramesh Kumar Sharma
 
Respondent :- M/S Gool Poput And Others
 
Counsel for Appellant :- Pradeep Chandra,N.B. Nigam,R.M. Singh,R.N. Singh,Raj Mohan Saggi,Rama Nand Gupta
 
Counsel for Respondent :- Radhey Shyam,R. Dixit,R. Dwivedi,Shashwat Kishore Chaturvedi
 

 
Hon'ble Saral Srivastava,J.

Order on Civil Misc. Review Petition No.178479 of 2011.

1. Heard Sri Shashi Nandan, learned Senior Counsel assisted by Sri S.K. Chaturvedi, Advocate on behalf of review-applicant, Sri Satish Chandra Mishra, Sri Navin Sinha, and Sri M.C. Chaturvedi learned Senior Counsel assisted by Sri Kapil Misra, Sri Ramanand Gupta, and Sri Vineet Sankalp learned counsel for the defendant-appellant.

2. The present review petition has been filed by the plaintiffs-respondents (hereinafter referred to as 'applicants') praying for the review of the judgment of this Court dated 25.05.2011 whereby this Court has allowed the appeal and remanded the matter back to decide the same after giving the full opportunity of hearing to the parties and after getting the property in dispute identified.

3. The necessary facts for the present case detailed in the judgment dated 25.05.2011 are as under:-

4. The applicants instituted a suit praying that defendants-appellants (hereinafter referred to as appellants) may be restrained from interfering with the possession over the plot shown by letters 'A, B, C & D' in the map attached with the plaint and boundaries given at the foot of the plaint.

5. The plaint case was that the father of the applicant E.M. Boyce was a permanent lessee of three Bighas, four Biswas equivalent to two acres situated in Civil Lines under a lease deed dated 01.09.1919 executed by Radhabai Zamindaria, widow of one Harlal Bhorey. There was a stipulation in the lease deed that lessees have no right to transfer the aforesaid land without permission of Zamindaria. Subsequently, Smt. Sarjoobai daughter of Radhabai on 05.06.1942 deleted the clause in the lease deed which prohibited the applicants to transfer the lease without permission of Zamindaria. A document to this effect was signed by Sri Rewa Shankar Bhayal as 'Muktar-e-am' of Smt. Sarjoobai. A further case in the plaint was that the leased plot was part and parcel of a big plot whose number was 158 in the settlement of 1865. The said plot was divided into 22 plots in the settlement year of 1297 and the land of three bighas and four Biswas was converted into plot nos.296, 297, and 298 in the settlement of 1346 fasli. The applicants are in possession of the aforesaid plots since 1919. It is further stated in the plaint that the appellant purchased the aforesaid land from defendant no.2 (Rewa Shankar Bhayal), and thereafter, they submitted an application before the S.D.O. concerned for demarcation. The Kanoongo, thereafter, inspected the spot for demarcation of land purchased by appellants, and the same was done on 14.03.1982.

6. The appellants contested the suit by filing a written statement contending interalia that the applicants are neither lessee nor in possession of plots marked by letters A, B, C & D and red lines in the map attached to the plaint. The appellants also denied the right of applicants over the land shown by letters C, G, K & J. The appellants further pleaded that the land shown by letters A, B, C & D in the map attached with the plaint was never leased out under the said lease, and boundaries given in Suit No.441 of 1993 do not tally with the lease dated 01.09.1919. Besides the above averments, the appellants took several other pleas and prayed for the dismissal of the suit.

7. The trial court by judgment and order dated 30.07.1983 decreed the suit of the applicants for the land shown by letters A, B, C, & D, but dismissed the suit for the land shown by letters C, G, K & J. The trial court also held that the land shown by letters A, B, C & D belongs to the applicants and they are in possession over the same.

8. Feeling aggrieved by the judgment of the trial court, the appellants preferred Civil Appeal before the District Judge, Jhansi. The applicants filed a cross objection against the judgment and order passed by the trial court. The appellate court by judgment and order dated 18.10.1988 confirmed the judgment of the trial court and dismissed the appeal filed by the appellants as well as the cross objection of the applicants. The appellate court held that the land shown by letters A, B, C & D are covered by lease deed dated 01.09.1919, hence, applicants are the owner of the same. The appellate court further held that Rewa Shanker Bhayal had no right to transfer the land shown by letters A, B, C & D to the appellants. Consequently, appellants have no right over the land-based on sale deed executed by Rewa Shanker Bhayal in their favour.

9. Feeling aggrieved by the order of the appellate court dated 18.10.1988, the appellant preferred the present second appeal.

10. The record of the case reveals that the present second appeal was heard on admission on 18.01.1989, on which date this Court while admitting the appeal passed the following order:-

"Admit.

Issue notice.

The substantial question of law is involved in this appeal is question no.4 framed as substantial question of law in the appeal."

11. The substantial question no.4 framed in the memo of appeal reads as under:-

"4. Whether the learned lower appellate court is justified placing reliance of the alleged admission made by Smt. Sarju Bai in the plaint of the suit no.441 of 1933, without the plaint is being proved in accordance with law?"

12. Thus, it is clear from the order dated 18.01.1989 that this Court has admitted the appeal on the substantial question of law no.4 framed in the memo of appeal.

13. The appeal was decided by this Court by judgment and order dated 25.05.2011whereby this court set aside the judgment of appellate court dated 18.10.1988 and judgment and decree dated 30.07.1983 passed by the trial court. The operative portion of the judgment and order dated 25.05.2011 reads as under:-

" In such circumstances, I am of opinion that courts below was not justified in granting injunction in favour of plaintiff-respondent. In case there was no identification of land it was the duty of the courts below to have identification through issuance of commission but admittedly, from the record it appears that courts below have not taken this endevour to get the property identified, therefore, in my opinion, the judgement and order passed by courts below dated 10.10.1988 passed by Additional District and Sessions Judge (Special Judge, E.C. Act) and judgement and decree dated 30.7.1983 passed by Munsif Magistrate, Jhansi are not sustainable in law, therefore, it is hereby quashed. The present appeal is allowed and appeal is remanded back to trial court to decide the same after giving full opportunity to the parties and after getting property in dispute identified. As the matter is very old and the parties are litigating from 1982, therefore, it will be appropriate that the trial court may decide the suit within a period of six months from the date of production of certified copy of this order.

No order as to costs."

14. Learned Senior Counsel for the applicants has firstly submitted that no substantial question of law was formulated by the Court as required under Section 100(4) of C.P.C. at the time of admission of appeal, hence, there is a palpable error committed by the Court in deciding the second appeal without complying with the requirement of Section 100 (4) of C.P.C.

15. He further submits that according to Section 100 (5) of C.P.C., the jurisdiction of the Court is to hear the appeal on the substantial question of law so formulated at the time of admission of appeal, and the Court is under obligation to permit the respondents, at the time of the hearing, to argue that case does not involve such question. He further submits that though the proviso appended to Section 100 (5) of C.P.C. vests the power in the Court to hear the appeal on any other substantial question of law not formulated by it at the time of admission of appeal, that power can be exercised by the High Court subject to compliance of stipulation contained in the proviso to Section 100 (5) of C.P.C. which means that the Court has to record reasons for formulating another substantial question of law which, in the opinion of the Court, is involved in the case. Accordingly, he submits that the Court in the instant case without recording reasons proceeded to formulate substantial question of law relating to the identity of the land and decided the same. Accordingly, the submission is that the Court did not comply with the requirement of proviso to Section 100 (5) of C.P.C.

16. Further, elaborating the aforesaid submission, he contends that no substantial question of law relating to identifiability of land was involved in the second appeal as no plea has been raised by the applicants in the written statement that property in dispute is not identifiable nor any issue was framed by the trial court in respect of the identity of land in dispute, and hence, there is an error of law on the face of record calling for intervention by this Court in the exercise of its power of review under Order 47 Rule 1 of C.P.C.

17. He further submits that the question of the identity of land is a question of fact and not a substantial question of law, therefore, this Court has erred in interfering with the judgement and order of the trial court as well as appellate court and allowed the appeal.

18. He also contends that the order under review has been passed without hearing the applicants and thus, a ground for review is also made out.

19. On the point of non-framing of the substantial question of law, learned Senior Counsel for the applicants has relied upon the following judgments:-

I. Naba Kishore Mohanta Vs. Janardan 2001 (92) R.D. 26 (SC);

II. Ashok Rangnath Nagar Vs. Srikant Govind Rao 2015 AIR S.C.W. 6318 (SC);

III. K.K. Kanan Vs. Koolivathukkal 2010 AIR S.C.W. 156 (SC).

20. On the issue that question of law relating to the identity of property is the question of fact, learned Senior Counsel for the applicants has placed reliance upon the judgment of this Court in the case of Lisamma Vs. Karthiyayan 2015 AIR SC 2824. On the question that the Court did not frame any question of law for remand, he has placed reliance upon the judgements in the cases of Sayeeda Rahimunnisa Vs. Malan Bi 2016 SC 4653, Municipal Corporation Vs. Surendra Singh 2008(4) A.W.C. 3414, P.Purushottam Vs. Pratap Steel 2002 (2) S.C.C. 686 and Thyang Rajan and Others Vs. Vinugopal Swami 2004 AIR S.C. 1913.

21. Rebutting the aforesaid submission, learned Senior Counsel for the appellant submits that earlier in the case, applicants had engaged Sri Radhey Shyam Dwivedi, Advocate, and Sri Rajesh Dwivedi, Advocate as their counsel. He submits that the judgment of this Court reveals that learned counsel for the applicants (respondents in appeal) was heard by the Court, and therefore, the review petition by another counsel Sri N.B. Nigam is not maintainable. He further submits that now presently, even the counsel, who has filed the review petition, Sri N.B. Nigam is not representing the applicants, and they are being represented by Sri S.K. Chaturvedi, Advocate who has filed Vakaltnama on 27.10.2016. Accordingly, he submits that the practice of changing Advocate while filing the review petition has been deprecated by the Apex Court in the case of Tamil Nadu Electricity Board and Another Vs. N. Raju Reddiear and Another AIR 1997 SC 1005 wherein the Apex Court has held that review petition cannot be entertained at the behest of a counsel or a person, who had not appeared before the Court or was not a party in the main case, therefore, the review petition is liable to be dismissed at the threshold in view of the judgment of Apex Court. He places paragraph 3 on page 8 of the judgment under review to point out that the Court has noted the contention of learned counsel for the respondents, therefore, the review petition could have been filed only by the counsel who was representing the applicants originally, as he is the best person to state as to whether the argument advanced herein by the learned Senior Counsel for the applicants was ever raised by him or not.

22. He further submits that earlier counsel Sri Rajesh Dwivedi has filed an affidavit on record wherein he has stated that he was engaged only to assist Sri Radhey Shyam Dwivedi, Advocate, who had died in January 2008. It is further stated in the affidavit that on the date of hearing of the case, he did not appear before the Court since he was confined to bed due to a fracture in his leg. Paragraphs 1 to 5 of the affidavit are being extracted herein below:-

"1. That, the deponent was engaged in the above mentioned second appeal to assist Sri Radhey Shyam Advocate, on behalf of the respondents.

2. That Sri Radhey Shyam Advocate had died in the month of January, 2008.

3. That thereafter the respondents had taken record of their case from the chamber of late Radhey Shyam, Advocate in end of April, 2011 for engagement of another counsel.

4. That the deponent was not in position to appear in Second Appeal on 25.05.2011 as the applicant was confined to bed due to fracture of his leg and as such the deponent could not inform the court that the deponent had no instructions to act as counsel in appeal.

5. That after the death of Sri Radhey Shyam Advocate, the respondents never contacted to deponent for argument of the case."

23. He submits that Sri Rajesh Dwivedi, Advocate, who was also counsel in the case, is a practicing Advocate, and therefore, in such circumstances, the review petition ought to have been filed by Sri Radhey Shyam Dwivedi, Advocate. He submits that veracity of the affidavit of Sri Radhey Shyam Dwivedi cannot be verified, and a bald averment has been made by Sri Rajesh Dwivedi, Advocate that he did not appear before the court on the day of hearing of case due to a fracture in his leg and no documentary evidence relating to his treatment was filed by Sri Rajesh Dwivedi, Advocate to substantiate said averment. He submits that no reliance can be placed upon the alleged affidavit of Sri Rajesh Dwivedi Advocate in the absence of any investigation enquiring about the veracity of the affidavit or any material on record to prove that the affidavit of Sri Rajesh Dwivedi is genuine. He further contends that the affidavit of Rajesh Dwivedi, Advocate is a device to get away with the objection of non-maintainability of review petition by other counsel.

24. He submits that once the Court has noted in its order that the submission had been advanced by counsel for the applicant, the said recital in the order is to be taken as true unless there is any material contrary to it on record. He further submits that this Court while admitting the appeal has formulated the substantial question of law extracted above which has been noted by the Court on page 4 in the judgment, and thereafter, it proceeded to decide the appeal.

25. He further submits that the Court can exercise its power of review only when it falls within the parameters of Order 47 Rule 1 of C.P.C., and the present case does not meet the requirement of Order 47 Rule 1 of C.P.C., hence, the Court should refrain from exercising its power under Order 47 Rule 1 of C.P.C. He further submits that the submission of learned counsel for the appellants that the Court has not framed any substantial question of law at the time of admission of appeal is incorrect and against the record since the order dated 18.01.1989 reflects that the appeal has been admitted on the substantial question of law no.4 framed in the memo of appeal.

26. He further submits that the Court has noted the substantial question of law framed at the time of admission of appeal in the judgement, and thereafter, it proceeded to decide the appeal on merit, and while deciding the substantial question of law, the Court found that the judgement of both the courts below is erroneous for the reason that the suit could not have been decreed without identification of the property in dispute, and accordingly, it set aside the judgment of both the courts below and remanded the matter back. He further submits that in the case of Ram Sahu (Dead) through L.Rs. and Others Vs. Vinod Kumar Rawat and Others 2020 SCC Online SC 896, the Apex Court held that an order can be reviewed by a Court only on the prescribed ground mentioned in the order under Order 47 Rule 1 of C.P.C. In this respect, he has placed reliance upon paragraph 34 of the judgment which is being extracted hereinbelow:-

"34. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review."

27. He further submits that the fact whether learned counsel for respondents had raised any argument that the question of identification of land is a question of fact and is not a substantial question of law at the time of hearing of appeal could only be certified by counsel who appeared in the case at the time of the hearing, and since the counsel who appeared in the case for the applicants has not filed review petition certifying that he had raised the aforementioned argument at the time of the hearing, therefore, this question cannot be raised by the counsel for the applicants. He submits that the applicants want rehearing of appeal in the garb of review application which is beyond the scope of review since it is settled in law that the power of review can be exercised only if there is an error apparent on the face of the record, and an error which has to be searched and fished out is not an error apparent on the face of the record.

28. Thus, he submits that no ground for review is made out and the review petition deserves to be dismissed.

29. I have considered rival submissions of the parties and perused the record.

30. The fact as emanates from the record reveals that Sri Radhey Shyam Dwivedi and Rajesh Dwivedi were counsels representing the applicants. The Court noted the submission advanced by the learned counsel for the respondents in the judgment, therefore, in view of the judgment of Apex Court in the case of (Tamil Nadu Electricity Board and Another) (supra), the review petition at the behest of another counsel is not maintainable. Paragraph 1 of the judgment is being extracted hereinbelow:-

"1. It is a sad spectacle that new practice unbecoming of worthy and conducive to the profession is cropping up. Mr. Mariaputham, Advocate-on-Record had filed vakalatnama for the petitioner-respondent when the special leave petition was filed. After the matter was disposed of, Mr. V. Balachandran, Advocate had filed a petition for review. That was also dismissed by this Court on April, 24, 1996. Yet another advocate, Mr. S.U.K. Sugar, has now been engaged to file the present application styled as "application for clarification", on the specious plea that the order is not clear and unambiguous. When an appeal/special leave petition is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the advocate on record who neither appeared nor was party in the main case. It is salutary to note that Court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the advocate on record at earlier stage. This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession. In Review Petition No.2670/96 in CA No.1867/92, a Bench of three Judges to which one of us, K. Ramaswamy,J., was a member, had held as under:

"The record of the appeal indicates that Shri Sudarsh Menon was the Advocate-on-Record when the appeal was heard and decided on merits. The Review Petition has been filed by Shri Prabir Chowdhury who was neither an arguing counsel when the appeal was heard nor was he present at the time of arguments. It is unknown on what basis he has written the grounds in the Review Petition as if it is a rehearing of an appeal against our order. He did not confine to the scope of review. It would be not in the interest of the profession to permit such practice. That part, he has not obtained "No Objection Certificate" from the Advocate-on-Record in the appeal, in spite of the fact that Registry had informed him of the requirement for doing so. Filing of the "No Objection Certificate" would be the basis for him to come on record. Otherwise, the Advocate-on-Record is answerable to the Court. The failure to obtain the "No Objection Certificate" from the erstwhile counsel has disentitled him to file the Review Petition. Even otherwise, the Review Petition has no merits. It is an attempt to reargue the matter on merits.

On these grounds, we dismiss the Review Petition".

31. In the present case, it is worth noticing that the facts detailed above reflect that the conduct of the applicants is mischievous and not fair for the reason that the Court has recorded in the judgment the contention advanced by the learned counsel for the applicants and to wriggle out the said fact recorded by the Court, applicants have filed the affidavit of Sri Rajesh Dwivedi, Advocate sworn on 25.04.2013 after about 2 years from the date of filing the review petition stating therein that he was engaged as assisting counsel to Sri Radhey Shyam Dwivedi, Advocate and on the date of hearing, he had fracture in leg without bringing any documentary evidence on record relating to his treatment which can demonstrate that he had fracture in leg. The affidavit of Sri Rajesh Dwivedi, Advocate had been filed after two years from the date of filing of the review petition to meet out the objection that the review petition is not maintainable as it has been filed by some other counsel and not the counsel who was heard at the time of hearing of the appeal. Further, from the averments made in the affidavit of Sri Rajesh Dwivedi, Advocate, it is manifest that Sri Rajesh Dwivedi, Advocate is still a practicing Advocate and he did not dare to come before the Court and state that the affidavit has been sworn by him and the averments made therein are correct, therefore, in such circumstances, this Court is not inclined to accept the affidavit of Sri Rajesh Dwivedi, Advocate and averments contained therein, more so, when the Court has noted the contentions advanced by the counsel for the applicants in the judgment.

32. At this stage, it would be apt to refer to the judgment of the Apex Court in the case of Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. AIR 2003 SC 511 wherein the apex court observed that statement of facts as to what transpired at the time of hearing recorded in the judgment of the Court are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. In this regard, the relevant extract of paragraph 61 of the judgment of the Apex Court is being reproduced hereinbelow:-

"61...statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges, who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment."

33. In the instant case, the matter was argued on behalf of applicants by original counsel, and review was filed by Sri N.B. Nigam, Advocate who was not the original counsel of the applicants, and even after filing the review, the applicants have changed the counsel and engaged a new counsel Sri S.K. Chaturvedi. Therefore, this court is of the view that the review application is not maintainable.

34. Now, coming to the other contention advanced by the learned counsel for the applicants, it would be pertinent to refer to the judgment of Apex Court wherein it has been held that the power of review can be exercised within the parameters provided in Order 47 Rule 1 of C.P.C. In the case of Lily Thomas etc. Vs. Union of India and Others AIR 2000 SC 1650, the Apex Court has held that the power of review can be exercised within the limits of the statute.

35. In this regard, it would also be relevant to refer to paragraph no. 3 & 5 of the judgment of Apex Court in the case of State of Haryana and Others Vs. Mohinder Singh and Others 2003 (1) AWC 567 SC which is being extracted 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."

36. Now, so far as the first contention of learned counsel for the applicant that the Court has not proceeded to frame any question of law at the time of admission of appeal, the said contention on the face of the record is wrong and incorrect. As noted above, this Court has admitted the appeal on the substantial question of law no.4 framed in the appeal, therefore, the judgment relied upon by the learned counsel for the applicants on the point that non-framing of the substantial question of law by the Court at the time of admission of appeal amounts to an error apparent on the face of the record which calls for intervention by this court in the exercise of the power of Review are not applicable in the facts of the instant case.

37. So far as the second contention advanced by the learned counsel for the applicants that proviso to Section 100(5) of C.P.C. was not adhered to by the Court in deciding the appeal, since the Court has not recorded any reason in framing the question of the identity of the land, and further the question of identification of land is a question of fact, therefore, the Court has committed an error which is apparent on the face of the record, therefore, the present is a case falling within the ambit of Order 47 Rule 1 of C.P.C., the said submission is also not sustainable for the reason that the Court while deciding the appeal has noted the substantial question of law framed at the time of admission of appeal in the 6th line from the top at page 4 of the judgement under review, and thereafter, proceeded to decide the appeal.

38. While deciding the substantial question of law on which the appeal was admitted, the Court found the illegality committed by the court below since the identity of the land in question was not ascertained and accordingly, it formed an opinion that the court below had erred in law in decreeing the suit without getting the property in dispute identified.

39. The perusal of judgment discloses that the Court did not frame any other substantial question of law and had decided the appeal only on the question of law so framed at the time of admission of appeal, and therefore, there does not arise any question of compliance of proviso to Section 100 (5) of C.P.C.

40. The judgment relied upon by the learned counsel for the applicants in the case of Lisamma (supra) on the point that question of the identity of property is a question of fact is not applicable in the facts of the present case. Since the Court has not framed any substantial question of law regarding the identity of the land, the Court, while deciding the question of law on which appeal was admitted, found illegality committed by the court below in not getting the land identified while decreeing the suit.

41. It is settled in law that Court can exercise its power of review only when there is an error apparent on the face of the record and an error which is to be fished out by a process of reasoning cannot be said to be an error apparent on the face of the record. Hence, it implies that the reviewing court has no power to review the judgment where the error in the judgment is to be searched out by a process of reasoning.

42. This Court is of the opinion that to test the aforesaid contention of learned counsel for the applicants, a process of reasoning has to be applied which is beyond the scope of review as under the power of review, the Court cannot re-hear the appeal.

43. At this stage, it would be relevant to note that the appellants have taken specific plea in paragraphs 17 and 19 of the written statement wherein they have disputed the identification of land, and further, they have filed an application before the appellate court, which is marked as paper no.74, praying for the survey of the land in question and thus, the submission of learned counsel for the applicants that identity of land was not disputed by the applicants is incorrect on the face of the record.

44. Now, so far as the submission of learned counsel for the applicants that Court did not frame any substantial question of law of remand, it is pertinent to note that no ground has been taken by the applicants in the memo of review petition that no substantial question of law of remand was framed, accordingly, the judgment under review is not sustainable. As no such ground has been taken by the applicants for reviewing the judgment of this Court, therefore, this submission cannot be advanced during the argument.

45. It is worth mentioning that the Court ought to have framed any issue of remand or not can be adjudicated only after hearing the applicants on merit inasmuch as to ascertain this question, the first question that would arise for adjudication is whether the Second Appellate Court on finding that the judgment of the lower court is not sustainable in law is devoid of the power to remand the matter directing the court below to decide the suit afresh without framing the issue of remand. To adjudicate the said question, this Court has to re-hear the appeal which is beyond the scope of the Court in the exercise of the power of review under Order 47 Rule 1 of C.P.C. Thus, the judgments cited on the point that no issue of remand was framed therefore the judgment under review is not sustainable are not applicable in the facts of the present case.

46. The contention of learned counsel for the applicants that no opportunity of hearing was given is also misconceived as the Court in its judgment has noted the submissions advanced by the learned counsel for the applicants, and accordingly, the said submission is also misconceived

47. Thus, for the reasons given above, the review application being misconceived is dismissed with no order as to cost.

Order Date :-2.8.2021

Sattyarth