Chattisgarh High Court

Murlidhar Valecha vs Ramandas Pamnani on 10 November, 2022

                                                            Page 1 of 9

                                                                NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                       MCC No. 407 of 2022

                     Reserved on : 01.08.2022

                     Delivered on : 10.11.2022

1.   Murlidhar Valecha (Died) Through Lrs.
     1(a). Asha Balecha, D/o Late Murlidhar Valecha, Aged About 62
     Years, R/o Gurunanak Sweets, Kiran Lodge Building, Gandhi
     Chowk, Bilaspur, Tehsil and District- Bilaspur (C.G.)
     1(b). Smt. Sunita Tripathi, D/o Late Murlidhar Valecha, Aged
     About 44 Years, R/o MIG- 211/2, Hudco Bhilai, District- Durg
     (C.G.)
     1(c). Rajesh Balecha, S/o Late Murlidhar Valecha, Aged About
     43 Years, R/o Gurunanak Sweets, Kiran Lodge Building, Gandhi
     Chowk, Bilaspur, Tehsil and District- Bilaspur (C.G.)
                                                        ---- Applicants
                              Versus
     Ramandas Pamnani, S/o Late Sabhagomal, Aged About 98
     Years, Occupation - Business, R/o Aadarsh Colony, High Court
     Road, Bilaspur, Tehsil and District- Bilaspur (C.G.)
                                                       ---- Respondent

For Applicants : Mr. Sunil Kumar Soni, Advocate.

Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. JUDGMENT

1. This MCC has been filed by the applicants for recalling of the

judgment dated 04.05.2022 passed by this Court in FA No. 176

of 2008 [Ramandas Pamnani Vs. Murlidhar Valecha (Dead)

through Lrs.] on the count that the learned Senior Advocate who

had appeared on behalf of the appellants is not the counsel

engaged by them. It has been further contended that correct

factual position has not been explained by the counsel that

presently grandson- Abhishek is doing business in the name of

Vinay Auto Parts in the very same complex and photographs of

the same have also been annexed with this recalling application.

This fact has not been placed on record by the appellant,

therefore, it amounts to play fraud with the Court. He would

further submit that the judgment which has been referred to by

this Court in Harish Kumar (Since Dead) Vs. Pankaj Kumar Garg

(Civil Appeal No. 253/2022) is not applicable to the present facts

and circumstances of the case. He would further submit that

since action of the appellant is not in accordance with law,

therefore, any further conduct of the appellant cannot be

sanctified the same, based on the well settled maxim of law i.e.

sublato fundamento cadip opus and would pray for recalling of

the order.

2. In support of his contention, he placed reliance upon the

judgment rendered by Hon'ble the Supreme Court in Budhia

Swain & others Vs. Gopinath Beb & others 1. He would further

submit that the entire action by the appellant is fraud and the

judgment and decree has been obtained fraudulently, therefore,

there is sufficient ground for vacating the order passed by this

Court. He has also referred to the judgment rendered by Hon'ble

the Supreme Court in A.R. Antulay Vs. R.S. Nayak & another 2,

United India Insurance Company Ltd. Vs. B. Rajendrda

Singh & others3, Vice Chairman, Kendriya Vidyalaya

Sangathan & another Vs. Girdhari Lal Yadav 4, H.S. Bedi Vs.

National Highway Authority of India5, Ram Chandra Singh 1 (1999) 4 SCC 396 2 AIR 1988 SC 1531 3 JT 2000 (3) SC 151 4 (2004) 6 SCC 325 5 (2016) 155 DRJ 259

Vs. Savitri Devi & others6, S.P. Chengal Varaya Naidu (Dead)

by Lrs. Vs. Jagannath (Dead) by Lrs. & others 7, Kishore

Samrite Vs. State of Uttar Pradesh8 & Scimed Overseas Inc.

Vs/ BOC India Limited & others9.

3. On the above factual matrix, he would pray for recalling of the

judgment dated 04.05.2022 passed by this Court in FA No. 176

of 2008 as two candid misfeasance were committed by the

appellant.

4. From facts and material placed on record, it is quite vivid that the

applicants in the garb of recalling of the order, have filed review

application, therefore, this Court has to look into the matter

whether any grounds as permissible under Order 47 Rule 1 and

Section 114 of the C.P.C. is made out or not. For better

understanding the facts and circumstances of the case, it is

expedient for this Court to extract the provisions of Section 114

and Order 47 Rule 1 of the C.P.C. which reads as under:-

"Section 114 of the C.P.C.- Review. - Subject as aforesaid, any person considering himself aggrieved--

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit." "Order 47 Rule 1 of C.P.C.-

1. Application for review of judgment- (1) Any person

6 (2003) 8 SCC 319 7 AIR 1994 SC 853 8 (2013) 2 SCC 398 9 (2016) 3 SCC 70

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 of 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 to the Court which passed the decree or made the Order. (2) A party who is not appealing from a decree on 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.]

5. From the averments made in the application for recalling of the

order filed before this Court, it is quite vivid that the applicant has

not been able to point out any error which is manifest on the face

of record which would have effect on doing justice between the

parties. The power, scope and limitation of reviewing the order

has come up for consideration before Hon'ble the Supreme

Court in S. Madhusudhan Reddy Vs. V. Narayana Reddy &

others10, wherein Hon'ble Bench of three judges has held at

paragraph 14 & 20 as under:-

"14. In Col. Avatar Singh Sekhon v. Union of India and

10 Civil Appeals No. 5503-5504 of 2022 (Decided on 18.08.2022)

Others 10, this Court observed that a review of an earlier order cannot be done unless the court is satisfied that the material error which is manifest on the face of the order, would result in miscarriage of justice or undermine its soundness. The observations made are as under: "12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante and Another v. Sheikh Habib 11 this Court observed : 'A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. ... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.' " (emphasis added)

19. After discussing a series of decisions on review jurisdiction in Kamlesh Verma v. Mayawati and Others 24, this Court observed that review proceedings have to be strictly confined to the scope and ambit of Order XLVII Rule 1, CPC. As long as the point sought to be raised in the review application has already been dealt with and answered, parties are not entitled to challenge the impugned judgment only because an alternative view is possible. The principles for exercising review jurisdiction were succinctly summarized in the captioned case as below:

"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 Chajju Ram vs. Neki, and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors. 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 v. Sandur Manganese & Iron Ores Ltd. & Ors.

20.2. 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 re- heard 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."

20. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma15, this Court was examining an order passed by the Judicial Commissioner who was reviewing an earlier judgment that went in favour of the appellant, while deciding a review application filed by the respondents therein who took a ground that the predecessor Court had overlooked two important documents that showed that the respondents were in possession of the sites through which the appellant had sought easementary rights to access his home-stead. The said appeal was allowed by this Court with the following observations:

"3 ...It is true as observed by this Court in Shivdeo Singh and Others v. State of Punjab26 there is nothing in Article 226 of the Constitution to preclude a 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 pulpable 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 or 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." (emphasis added)"

6. Hon'ble the Supreme Court in Ram Sahu (Dead) through Lrs.

& others Vs. Vinod Kumar Rawat & Others11 has also

considered the exercise of power and ambit of scope of review

and held at paragraph 30, 34 & 35 as under:-

"30. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. In the case of Patel Narshi Thakershi vs. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844, this Court has held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise.

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

11 Civil Appeal No. 3601 of 2020 (Decided on 03.11.2020)

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.

35. Considered in the light of the aforesaid settled position, we find that the High Court has clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1 CPC. No ground as envisaged under Order 47 Rule 1 CPC has been made out for the purpose of reviewing the observations made in para 20. It is required to be noted and as evident from para 20, the High Court made observations in para 20 with respect to possession of the plaintiffs on appreciation of evidence on record more particularly the deposition of the plaintiff (PW1) and his witness PW2 and on appreciation of the evidence, the High Court found that the plaintiff is in actual possession of the said house. Therefore, when the observation with respect to the possession of the plaintiff were made on appreciation of evidence/material on record, it cannot be said that there was an error apparent on the face of proceedings which were required to be reviewed in exercise of powers under Order 47 Rule 1 CPC. At this stage, it is required to be noted that even High Court while making observations in para 20 with respect to plaintiff in possession also took note of the fact that the defendant nos. 1 and 2 - respondents herein themselves filed an application being I.A. No.1267 of 2012 which was filed under Section 151 CPC for getting the possession of the disputed house from the appellants and the said application was dismissed as withdrawn. Therefore, the High Court took note of the fact that even according to the defendant nos. 1 & 2 the appellants were in possession of the disputed house. Therefore, in light of the fact situation, the High Court has clearly erred in deleting para 20 in exercise of powers under Order 47 Rule 1 CPC more particularly in the light of the settled preposition of law laid down by this Court in the aforesaid decisions."

7. This Court while allowing the appeal of the landlord has

considered that the bonafide requirement of the shop for the

grandson of the appellant, is satisfaction of the landlord and the

tenant cannot question the landlord's bonafide requirement and

thereafter, negatived the claim of the present applicant. The

ground raised by the applicant is nothing but amounting to re-

agitating the issue which is not permissible in the garb of

recalling of the order or review of the order, therefore, the

submission made by the applicant that grandson is doing

business in the name of Vinay Auto Parts in the same complex,

cannot be ground to review the order as there is no apparent

mistake on the face of the record. So far as the objection raised