Bombay High Court

Smt. Uma Wd/O Kuleshawar Kuranjekar And ... vs The State Of Maharashtra, Department Of ... on 1 March, 2024

Author: Avinash G. Gharote

Bench: Avinash G. Gharote

2024:BHC-NAG:2540-DB

                                                                                                                                     186 mca69.24
                                                                                 1

                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                  NAGPUR BENCH, NAGPUR

                  MISC.CIVIL APPLICATION (REVIEW) NO.69/2024
                                        IN
                          WRIT PETITION NO.2865/2022
                       Smt.Uma wd/o Kuleshawar and anr
                                      ..vs..
                 The State of Maharashtra, Department of Village
              Development and Water Conservation, thr.its Secretary,
                           Mantralaya, Mumbai and ors

        ...........................................................................................................................................................................
        Office Notes, Office Memoranda of Coram,
        appearances, Court orders or directions                                                    Court's or Judge's Order
        and Registrar's orders
        ....................................................................................................................................................

                            Shri A.K.Waghmare, Counsel for Applicants.

                            CORAM : AVINASH G.GHAROTE & URMILA JOSHI-PHALKE, JJ.

CLOSED ON : 23/02/2024 PRONOUNCED ON : 01/03/2024

(Per : Urmila Joshi-Phalke, J.)

1. Heard.

2. By this application, applicants seek review of

judgment dated 4.10.2023 passed by this court.

3. The applicants filed a petition bearing Writ Petition

No.2865/2022 seeking directions to respondent No.3 Zilla

Parishad, Gondia to decide application of petitioner No.1

(applicant No.1 in this application) substituting name of

petitioner No.2 (applicant No.2 in this application) in waiting

list of compassionate appointment in place of petitioner No.1.

The said writ petition was dismissed by observing that delay,

.....2/-

186 mca69.24

either in making application or appointment on compassionate

basis, would defeat very purpose and object of policy which

was to grant immediate succour to the family of the bereaved.

4. The review application is filed mainly on the

ground that while filing the writ petition, certain documents

regarding pension and gratuity, as well as application dated

13.11.2013 which was submitted to respondents, were not

part of the petition due to a mistake on the part of applicants

as well as their counsel which resulted in dismissal of the

petition.

Another ground raised is, that finding recorded by

this court regarding non-application of Dnyaneshwar

Ramkisan Musane case and policy of 20.5.2015 also appears

against facts and law which is a patent mistake committed by

the court while passing the judgment.

5. Heard learned counsel for applicants and perused

the record.

6. Learned counsel for applicants submitted that

while dismissing the petition, this court observed that the case

of Dnyaneshwar Ramkisan Musane is not applicable, which is

an error apparent on the face of record and, therefore, the

judgment passed in the writ petition deserves to be reviewed.

.....3/-

186 mca69.24

He submitted that at the time of filing of the writ petition,

certain documents regarding pension and gratuity were not

filed. The amount received by applicants due to death of the

deceased is entirely spent for paying bills and, therefore,

applicants were in need of immediate succour. However, the

observation of this court is erroneous and appears to be

patent error which requires to be reviewed.

7. Before entering into controversy, it is necessary to

see settled law regarding scope and ambit of Section 114 read

with Order XLVII Rule 1 of the Code of Civil Procedure.

8. In the case of Haridas Das vs. Usha Rani Banik

(Smt.) and others, reported at 2006(4) Mh.L.J. (S.C.) 14,

while considering the scope and ambit of Section 114 read

with Order XLVII Rule 1 of the Code of Civil Procedure, it is

observed and held in paragraph Nos.14 to 18 as under:

"14. In Meera Bhanja vs. Nirmala Kumari Choudhury, (1995)1 SCC 1780 it was held that:

"It is well settled law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, CPC. In connection with the limitation of the powers of the Court under Order XLVII, 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 vs. Aribam Pishak Sharma speaking through Chinnappa Reddy, J. has made the following pertinent observations:

.....4/-

186 mca69.24

'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 be exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of 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 merit. That would be in 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 error committed by the Subordinate Court."

15. A perusal of the Order XLVII, Rule 1 show that review of a judgment or an order could be sought :

(a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and

(c) on account of some mistake or error apparent on the face of record or any other sufficient reason.

16. Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma (AIR 1979 SC 1047) this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order XLVII, Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to

.....5/-

186 mca69.24

this Court it was held as under: (SCC p-390, para

"It is true as observed by this Court in Shivdeo Singh vs. State of Punjab (AIR 1963 SC1908) there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inherent 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 of 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."

17. The judgment in Aribam's case (supra) has been followed in the case of Smt. Meera Bhanja (supra). In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in the case of Satyanarayan Laxminarayan Hegde vs. Mallikarjun Bhavanappa Tirumale[ AIR 1960 SC 137] were also noted:

"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

.....6/-

186 mca69.24

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."

18. It is also pertinent to mention the observations of this Court in the case of Parsion Devi vs. Sumiri Devi (1997)(8) SCC 715). Relying upon the judgments in the cases of Aribam's (supra) and Smt. Meera Bhanja (supra) it was observed as under :

"Under Order XLVII, Rule 1, CPC a judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, 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."

9. Thus, an application for review would lie inter alia

(i) when the order suffers from an error apparent on the face

of record and permitting the same to continue would lead to

failure of justice. The power of review can also be exercised

by the Court (ii) on the discovery of new and important

material which, after the exercise of due diligence, was not

within the knowledge of the person seeking the review or

.....7/-

186 mca69.24

could not be produced by him at the time when the order was

made. An application for review would also lie (iii) if the order

is passed on account of some mistake. It is well settled that

reviewing Court is not an appellate court over its own order.

Thus, the powers of review can be exercised for correction of

mistake and such powers can be exercised within the limits of

the statutes. The term 'mistake' or 'error' apparent is

discussed by the Honourable Apex Court in the case of State

of West Bengal and others vs. Kamal Sengupta and

another, reported at (2008) 8 SCC 612 wherein it has been

observed that 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.

10. The Honourable Apex Court in the case of Ram

Sahu (dead) through LRs vs. Vinod Kumar Rawat and

.....8/-

186 mca69.24

others, reported at 2021(3) Mh.L.J. 268 by referring catena

of decisions of the Honourable Apex Court observed that the

principles which can be culled out from the above noted

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 XLVII Rule 1 CPC.

(ii) The Tribunal can review its decision on either of the grounds enumerated in Order XLVII Rule 1 and not otherwise.

(iii) The expression "any other sufficient reason"

appearing in Order XLVII 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.

It is further held in the case cited supra that to

appreciate the scope of review, it would be proper for this

Court to consider 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

.....9/-

186 mca69.24

as the case may be in the Court, which has passed the order

or 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 has 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 XLVII Rule 1 CPC.

11. Keeping in mind the aforesaid principles, let us

consider the claim of applicants.

12. The first ground raised by applicants is, that some

documents are not filed along with application which goes to

the root of the matter. The second ground raised is, that

finding recorded by this court regarding non-application of

Dnyaneshwar Ramkisan Musane's case is patent error

committed by the court. While disposing of the writ petition,

the court has considered object underlying the provision for

grant of compassionate appointment which enables family of

the deceased employee to tide over sudden crisis due to the

death of bread earner. By referring various decisions of the

Honourable Apex Court as well as this court, it is observed

that any delay, either in making application or appointment on

.....10/-

186 mca69.24

compassionate basis, would defeat very purpose and object of

policy and immediate succour and an application for

appointment on compassionate ground could not be

considered after delay of several years. It is further observed,

in view of decisions of the Honourable Apex Court, that on

account of the reason of prolonged delay either on the part of

claimants in approaching or authorities in deciding such

claims, sense of immediacy is diluted and lost. During such a

long duration, since the family of the deceased was able to

sustain it, then granting appointment on compassionate basis

after several years would be a back door entry and defeat

object of providing public employment on merits. The policy

of 2010 does not provide for substitution. This observation

itself shows that the writ petition is not dismissed only on the

ground of non-application of Dnyaneshwar Ramkisan

Musane's case, but it is dismissed considering that factor of

immediate succour is now diluted and lost.

13. Insofar as contention of applicants, that

documents are not produced on record, cannot be said to be

an error apparent on the part of the court. Even, if these

documents are considered, they would in fact indicate that on

account of the demise of the bread earner, comparatively

substantial sums were received by the family of the deceased

on account of gratuity and pension which again would indicate

.....11/-

186 mca69.24

that the need of the family was taken care of. Though a plea

has been raised that these amounts were spent on medical

bills, that cannot now be gone into, being a question of fact

which needed to be established at the outset itself.

14. The principles which can be laid down for applying

provision for review, in view of Order XLVII Rule 1 of the Code

of Civil Procedure upon which the court can review its decision

are enumerated above.

15. The expression "any other sufficient reasons"

appearing in Order XLVII Rule 1 of the Code of Civil Procedure

has to be interpreted in the light of grounds enumerated in

the provision. An error which is not self evident and which

can be discovered only by a long process of reasoning, cannot

be treated as an error apparent. The term mistake or error

apparent, signifies an error which is evident from the record of

the case and does not require a detailed examination. If an

error is not self evident, it cannot be treated as an error

apparent on the face of record for the purpose of Order XLVII

Rule 1 of the Code of Civil Procedure.

16. In this view of the matter, grounds raised by

applicants, that for some other reasons relevant documents

are not filed, are not covered under Order XLVII Rule 1 of the

Code of Civil Procedure.

.....12/-

186 mca69.24

17. As already observed, the writ petition is not

dismissed only on the ground of non-application of

Dnyaneshwar Ramkisan Musane's case, but it is decided by

observing that object of providing compassionate

appointment after a long delay is diluted and lost.

18. The expression "any other sufficient reasons" used