Allahabad High Court
Smt. Raj Dei And Others vs Vith Addl. District Judge And Others on 7 December, 2023
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:232322
Court No. - 4
Case :- WRIT - A No. - 31652 of 1997
Petitioner :- Smt. Raj Dei And Others
Respondent :- Vith Addl. District Judge And Others
Counsel for Petitioner :- ,Mahesh Sharma,Sharad Sinha
Counsel for Respondent :- S.C.,Amitabh Agarwal,B.R.Tripathi,Himanshu Singh,Nitin Jain,P.K. Jain
Hon'ble Prakash Padia,J.
Ref:- Civil Misc. Substitution Application No.5 of 2021
1. The substitution application has been filed, supported by an affidavit, with a prayer to insert the word "deceased" against the name of petitioner No.1 namely Smt. Raj Dei who is said to has died on 14.12.2020 as her legal representatives and heirs are only record.
2. Learned counsel for the respondent has no objection.
3. Accordingly, the substitution application is allowed.
4. Office is directed to insert the word "deceased" after the name of petitioner No.1 namely Smt. Raj Dei.
5. The aforesaid exercise be completed by the office within ten days from today.
Ref:- Civil Misc. Delay Condonation Application No.2 of 2018
1. The present review application has been filed with the prayer to review the order dated 11.05.2009 passed in present petition by which the present petition was dismissed as having become infructuous. The order dated 11.05.2009 is reproduced hereinbelow:-
"Learned counsel for the petitioner states that this petition has become infructuous. In view of the above this writ petition is dismissed as having become infructuous."
2. After the dismissal of the aforesaid petition, a restoration application being Restoration Application No.160729 of 2009 had been filed on 31.05.2009 with the prayer to recall the aforesaid order. The aforesaid restoration application was dismissed by this Court vide orde dated 15.08.2018 on the ground that the writ petition was dismissed as having become infructuous on the statement of the learned counsel for the petitioners, therefore, the recall application was dismissed as not maintainable. Further direction was given to the petitioners to file review application, if so advice. The order dated 15.05.2018 is reproduced hereinbelow:-
"Order on Restoration Application No. 160729 of 2009
This restoration application has been filed on 31.05.2009 praying for recall of the order dated 11.05.2009.
From a perusal of the order dated 11.05.2009, it appears that this Court had dismissed the writ petition as having become infructuous on such a statement being made by the learned counsel for the petitioners.
Such an order cannot be recalled as it has been passed on the statement being made by the learned counsel for the petitioners that the writ petition has become infructuous.
This recall application is rejected as not maintainable.
The petitioners are free to file review application, if so advised."
3. Thereafter the present review application has been filed along with the delay condonation application.
4. It is stated in paragraph 14 of the affidavit that the delay is not deliberate and willful and after dismissing the restoration application on 15.5.2018, the petitioner/applicants immediately filed the present review application and prays that delay in filing the present review application be condoned.
5. Learned counsel for the respondent has no objection.
6. Heard learned counsel for the parities
7. Since there are sufficient ground to condone the delay, the delay condonation application is allowed.
Ref:- Civil Misc. Review Application No.3 of 2018
1. The present review application has been filed with the prayer to review the order dated 11.05.2009 passed in Writ petition being Writ A No.31652 of 1997 (Smt. Raj Dei and others Vs. VIth Addtional District Judge and others). By the aforesaid, the writ petition petition was dismissed as having become infructuous. The order dated 11.05.2009 is reproduced hereinbelow:-
"Learned counsel for the petitioner states that this petition has become infructuous. In view of the above this writ petition is dismissed as having become infructuous."
2. Following grounds were taken while filing the present review petition:-
"a. Because the dispute in the present writ petition was in respect of landlord-tenant dispute. The writ petition arose out of proceeding under section 21(1)A of U.P. Act No. 13 of 1972 for release of shop in the tenancy of respondent no. 3, thus, the writ petition ahs not rendered infructuous.
b. Because it appears that order dismissing the writ petition infructuous was passed due _ to communication gap or due to some inadvertence. Statement was made for dismissing the writ petition for want of instruction.
c. Because as soon as instruction was received by the counsel for the petitioners, the restoration application was filed for recalling the order dated 11.5.2009, the said restoration application too was filed within time."
3. The procedure has been prescribed for filing the review application under Order 47 Rule 1 Code of Civil Procedure read with Section 114 of C.P.C. and Chapter V Rule 12 of the Allahabad High Court Rules.The Order 47 Rule 1 C.P.C. is reproduced hereinbelow:-
1. Application for review of judgment.-
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
[Explanation. The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.]
4. In the case of Inderchand Jain vs. Motilal, (2009) 14 SCC 663 in paragraphs 7 to 11 it is observed and held by the Hon'ble Supreme Court as under:
"7. Section 114 of the Code of Civil Procedure (for short "the Code") provides for a substantive power of review by a civil court and consequently by the appellate courts. The words "subject as aforesaid" occurring in Section 114 of the Code mean subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47 of the Code; Rule 1 whereof reads as under:
"17. The power of a civil court to review its judgment/decision is traceable in Section 114 CPC. Tjhe grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC, which reads as under:
1. Application for review of judgment.--(1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the court which passed the decree or made the order.' "
8. An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar v. Rambai this Court held: (SCC p. 514, para 6) "6. 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."
9. The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake.
Furthermore, an application for review shall also lie for any other sufficient reason.
10. 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. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.
11. Review is not appeal in disguise. In Lily Thomas v. Union of India this Court held: (SCC p. 251, para 56) "56. It follows, therefore, that 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."
5. What can be said to be an error apparent on the face of the proceedings has been dealt with and considered by the Hon'ble Supreme Court in the case of T.C. Basappa vs. T.Nagappa, AIR 1954 SC 440. It is held that such an error is an error which is a patent error and not a mere wrong decision. In the case of Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 SC 233, it is observed as under:
"It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated."
6. In the case of Parsion Devi vs. Sumitri Devi (1997) 8 SCC 715 in paragraph 7 to 9 it is observed and held by the Hon'ble Supreme Court as under:
"7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372 this Court opined:
"What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an ''error apparent on the face of the record'). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an ''error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by ''error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."
7. Again, in Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma AIR 1979 SC 1047, the Hon'ble Supreme Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
"9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not selfevident 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 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".
8. In the case of State of West Bengal and Others vs. Kamal Sengupta and Anr., (2008) 8 SCC 612, the Hon'ble Supreme Court had an occasion to consider what can be said to be "mistake or error apparent on the face of record". In para 22 to 35 it is observed and held as under:
"22. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision."
9. The principles which can be culled out from the abovenoted judgments are:
"(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1 CPC.
(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.
(iii) The expression "any other sufficient reason" appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.
(iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).
(v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
(vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.
(vii) While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier."
10. The Division Bench of this Court, in which I am a member, in the case of Union Bank Of India Vs. Additional District Magistrate, Meerut And 2 Others (Civil Misc. Review Application No.293 of 2021) decided on 30.05.2023 has already dealt with the matter in great detail.
11. In view of the above, this Court is of the firm opinion that the present review application does not fall within the provisions contained under Order 47 Rule 1 C.PC. Accordingly, the review application is hereby dismissed.
Order Date :- 7.12.2023
saqlain
