Tirath Singh vs Smt.Prem Lata
2023 Latest Caselaw 10582 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 5
 

 
Case :- SECOND APPEAL No. - 373 of 1979
 

 
Appellant :- Tirath Singh
 
Respondent :- Smt.Prem Lata
 
Counsel for Appellant :- S.K.Verma,Bipin Lal Srivastava,Bipin Pal Singh
 
Counsel for Respondent :- Rajiv Joshi,Brajesh Kumar Singh,Devesh Rastogi,Jagdamba Prasad,P.L. Yadav,Vivek Rastogi
 

 
Hon'ble Prakash Padia,J.

Ref:- Civil Misc. Delay Condanation Application No.8 of 2023

Heard learned counsel for the appellant.

This is an application praying for condonation of delay in the filing the restoration application.

Sufficient cause has been shown in the affidavit filed in support of the delay condonation application.

The application is allowed.

Delay is condoned.

Ref:- Civil Misc. Recall/Restoration Application No.7 of 2023

Heard learned counsel for appellant and perused the record.

This is an application supported by an affidavit seeking recall of the order dated 15.11.2022 by which the second appeal was dismissed for want of prosecution.

Cause shown is sufficient. The restoration application is allowed and the order dated 15.11.2022 is hereby recalled.

The second appeal is restored to its original number.

Ref:- Civil Misc. Delay Condanation Application No.2 of 2019

Heard learned counsel for the review-appellant.

This is an application praying for condonation of delay in the filing the review application in the present second appeal.

Sufficient cause has been shown in the affidavit filed in support of the delay condonation application to condone the delay.

The application is allowed.

Delay is condoned.

Ref:- Civil Misc. Review Application No.3 of 2019

1. The present review application has been filed against the judgement and decree dated 03.07.2019 passed by this Court in Second Appeal No.373 of 1979 (Tirath Singh (now deceased and represented by LRs) and others Vs. Smt. Prem Lata and others).

2. From perusal of the record, it appears that after considering all the aspects of the matter, this Court dismissed the second appeal by passing a detail judgement which is running into 25 paragraphs. The following grounds have been taken by the review-applicant while filing the present review application:-

"1. Because, the main question was whether the mortgage can be redeemed or not and this point has not been dealt with by this Court.

2. Because the L.A.C. has totally ignored this aspect of the matter and this point was also not properly placed before this Hon'ble High Court and hence it requires reconsideration.

3. Because, the question of tenancy right were involved but that too was not properly pleaded before this Hon'ble High Court and hence it requires reconsideration.

4. Because, the most vital rights were involved and the arguments were not well placed before this Hon'ble High Court."

3. I have gone through the grounds taken in Review Application, which virtually constituting an attempt to re-argue the matter which cannot be done in the garb of review.

4. It is well settled law that the power of review under Order 47 Rule 1 of Code of Civil Procedure is very limited and it may be exercised only on the ground that :-

(1) 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.

(2) Order made on account of some mistake.

(3) Error apparent on the face of the record, or for any other sufficient reason.

The law governing the scope of review that has been succinctly laid down by the Hon'ble Court in:

Ajit Kumar Rath v. State of Orissa and others, (1999) 9 SCC 596 a review cannot be claimed or asked for merely for a fresh hearing or arguments, or correction of an erroneous view taken earlier.

In this case the Supreme court held as under:

?30???.

The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression ?any other sufficient reason? used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule.

31. Any other attempt, except an attempt to correct on apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment.?

5. In the case of Union of India V. Tarit Ranjan Das reported in 2004 SCC (L & S) 160, it was further held by the Supreme Court that the scope for review is rather limited and it is not permissible for the forum hearing the review application to act as an appellate Court in respect of the original order, by a fresh order and rehearing the matter to facilitate a change of opinion on merits.

6. In the case of Inter Chand Jain (Dead) through Lrs. Vs. Motilal (Dead) through Lrs. reported in 2009 (14) SCC 663, it is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.

7. In the case of Lily Thomas Vs. Union of India reported in 2000 (6) SCC 224, it was held by the Supreme Court the power of review can be exercised for correction of a mistake but 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 like an appeal in disguise. The paragraph 56 of the aforesaid judgement is quoted hereinbelow :-

?56. 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 Article 136 or Article 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.?

8. In the recent judgment delivered by the Supreme Court in the case of Shivakami and others Vs. State of Tamil Nadu and others, reported in 2018 (4) SCC 587; it was again held by the Supreme Court that :-

?18. The scope of the appellate powers and the review powers, is well defined. The power of review under Order 47 Rule 1 of the Code of Civil Procedure, 1908 is very limited and it may be exercised only if there is a mistake or an error apparent on the face of the record. The power of review is not to be confused with the appellate power. The review/application cannot be decided like a regular intra-court appeal. On the other hand, the scope of appeal is much wider wherein all the issues raised by the parties are open for examination by the appellate court.?

9. In Kamlesh Verma Vs. Mayawati and others 2013 (8) SCC 320, the Court said:

"19. 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 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.

Summary of the Principles:

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" has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., 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 vs. Sandur Manganese & Iron Ores Ltd. & Ors., 2013 (8) SCC 337.

22.2. 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." (emphasis supplied)

10. In view of above, no ground for review is made out.

11. Application is accordingly, rejected.

Order Date :- 11.4.2023

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