Mahendralal Shah & Ors vs Parna Roy Shah & Anr
2023 Latest Caselaw 5051 Cal

Citation : 2023 Latest Caselaw 5051 Cal
Judgement Date : 16 August, 2023

Calcutta High Court (Appellete Side)

Mahendralal Shah & Ors vs Parna Roy Shah & Anr on 16 August, 2023

Ct.
No.   16.8
652   2023                               RVW 18 of 2023
157                                              With
                                             CAN 1 of 2023
                                                 With
                                             CAN 2 of 2023
                                                  In
                                             CO 114 of 2021

                                  Mahendralal Shah & Ors.
                                          -Versus-
                                   Parna Roy Shah & Anr.


             Mr. Dhiraj Trivedi
             Mr. Suvashish Sen Gupta
             Mr. Dibyawan Banerjee
             Mr. Abhrajit Roy Chowdhury
             Mr. Sunil Gupta
                                                      ...For the Petitioners

             Mr. Siddhartha Banerjee
             Ms. Aditi Kumar
                                                      ...For the opposite party




                  This       review     application     has    been   preferred      in

             connection with order dated 01.12.2022 passed by this

             court on the ground that there is an error apparent on the

             face of the record since direction has been made upon

             review        applicants    to     pay     lump    sum    amount        of

             Rs.8,00,000/- as interim maintenance from the income of

             the schedule property involved in the partition suit.

             Further ground is while passing the said order it was not

             considered that the issue as to whether an illegitimate

             child    is    entitled    to    any     maintenance     or     share   in

             coparcenery property, is pending before the Larger Bench

             of the Hon'ble Supreme Court and the same ought not to

             have been directed to pay at this moment and said order

             was passed without considering the financial condition of
                         2




the opposite parties/review applicants and that all the

respondents/petitioners were not liable to bear the

amount of maintenance ordered to be paid to the

respondents. The other grounds for review is that the

amount of Rs. 8,00,000/- was fixed without there being

any conclusive document before the Court to support

such claim made by the respondents. Furthermore birth

certificate cannot automatically lead to a conclusion that

the information furnished therein is correct and

unquestionable. It was also argued that the person for

whom said interim maintenance order was granted, has

already attained majority and neither said person nor his

mother have any right in the partnership firm. Finally it is

argued that partnership firm is not a party to the suit, so

impugned order cannot bind the partnership firm.

Mr. S. Banerjee learned counsel appearing on behalf

of the petitioner submits that the scope of review

application is very limited and such application is

entertainable only when there is a mistake or an error

apparent on the face of the record or on the ground of

discovery of new and important mater of evidence which

was not within the petitioner's knowledge or could not be

produced by them at the time, when the order was passed

or have any other sufficient reason. The grounds shown

by the petitioner herein, have nothing to show that there

is any error apparent on the face of the record or that they

have discovered any new or important matter or evidence

for which the order is required to be reviewed. Accordingly

prayed for dismissal of review Application with cost.

I have gone through the order impugned and it

appears that while passing the order dated 01.12.2022

this court has considered the submissions made by the

petitioner herein and considering the said submissions

made on behalf of the parties, the order impugned was

passed.

It is well settled that the Review Court is not

supposed to sit in appeal over its own order. In fact the

power of review can be exercised only for correction of any

mistake which is apparent on the face of record and error,

if any, which are not self-evidence and can only be

decided by a process of reasoning, cannot be said to be an

error apparent on the face of the record justifying to

exercise court's power under order XLVII rule 1 of the

code. The review cannot be treated as an appeal in

disguise to substitute another view. In fact the main

grounds taken in the review application i.e. whether an

illegitimate child is entitled to any maintenance or share

in the coparcenery property is pending before the larger

bench of the Supreme Court and same ought not to have

directed to pay at this moment and that birth certificate

does not automatically lead to a conclusion that the

information furnished therein is correct and

unquestionable, has been dealt with in the order

impugned. Even if petitioner thinks that there is any error

in the observation made in the order impugned, the power

of review may not be exercised on the grounds that the

decisions was erroneous on merit. Since the controversy

has been settled finally after hearing both the parties, in a

review proceeding, the court cannot rewrite the judgment.

In this context reliance is placed upon paragraph 17 of

the judgment in Perry kansagra Vs. Smriti Madan

Kansagra reported in 2019 SCC Online SC 211.

"17. We have gone through both the judgments of the High Court in the instant case and considered rival submissions on the point. It is well settled that an error which is required to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record. To justify exercise of review jurisdiction, the error must be self-evident. Tested on this parameter, the exercise of jurisdiction in the present case was not correct. The exercise undertaken in the present case, in our considered view, was as if the High Court was sitting in appeal over the earlier decision dated 17-2-2017 [Smriti Madan Kansagra v. Perry Kansagra, 2017 SCC OnLine Del 7007 : (2017) 237 DLT 728] . Even assuming that there was no correct appreciation of facts and law in the earlier judgment, the parties could be left to challenge the decision in an appeal. But the review was not a proper remedy at all. In our view, the High Court erred in entertaining the review petition and setting aside the earlier view dated 17-2- 2017 [Smriti Madan Kansagra v. Perry Kansagra, 2017 SCC OnLine Del 7007 : (2017) 237 DLT 728] . Having so concluded, the logical course in the circumstances would be to set aside the judgment under appeal and permit the respondent to challenge the judgment dated 17-2- 2017 [Smriti Madan Kansagra v. Perry Kansagra, 2017 SCC OnLine Del 7007 : (2017) 237 DLT 728] . But such a course would entail further litigation and therefore, we have considered the matter from the standpoint of second issue as well."

It is true that power of review can also be exercised

for "any other sufficient reason" analogous to those

specified in Rule and such reason is wide enough to

include a misconception of fact or law by a court or even

an advocate. In the present context, petitioner also failed

to explain what is the misconception of fact or law

reflected in the order impugned that has prompted them

to file the present application It is well settled that

repetition of old and overruled arguments is not enough to

re-open concluded adjudication. As long as points for

review dealt with and answered, the petitioner is not

entitled to challenge the order in guise that an alternative