Chattisgarh High Court
Shri Arjun Prasad Dubey (In Person) vs President, Priyadarshini Grih Nirman ... on 21 April, 2025
1
2025:CGHC:19005
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
REVP No. 18 of 2025
1. Shri Arjun Prasad Dubey (In Person) Age - 77 Years 11
Months, S/o Late Shri Gaya Prasad Dubey, Address- House
No. 323 Union Bank Ki Baju Gali Ganjpara- Bemetara, District
Bemetara (C.G.) Pin- 491335.
... Petitioner
versus
1. President, Priyadarshini Grih Nirman Sahakari Samiti
Maryadit 445 B, Priyadarshni Nagar Raipur (C.G.)
2. Sub Registrar Sahkari Samitiya (Paikeg) Vivekanand
Complex, Pension Bada, Raipur (C.G.)
... Respondents
For Petitioner : Petitioner in Person
SB: Hon'ble Mr. Parth Prateem Sahu, J
Order On Board
21.4.2025
1. Petitioner has filed this petition seeking review of the CAV
Order dated 3.9.2024 passed in WPC No.3803/2023 by which
writ petition filed by petitioner has been dismissed.
2. This review petition has been filed inter alia on the grounds
that:
• the District Consumer Disputes Redressal Forum Raipur
has wrongly held that suit should have been filed within
two years from notice dated 14.8.2010 and the cause of
action has not arisen from the notice dated 24.2.2014.
Cause of action firstly arisen when allotment of plot was
cancelled and secondly, when notice regarding allotment
of land was not replied. Claim of petitioner cannot be held
to be barred by limitation because possession of plot has
not been delivered to him till date, hence there was
continuing cause of action in favour of petitioner. Thus,
the orders of the District Forum and National Forum
rejecting claim of petitioner being barred by limitation are
liable to be set aside.
• the High Court has not considered permission letter dated
22.4.1991 (Annexure P-20 to writ petition) in its proper
perspective. Further, the High Court erred in holding that
petitioner ought to have presented the matter within two
years from 1.2.1993.
• It was wrongly concluded that petitioner ought to have filed
the matter within two years of 1.2.1993, the date on which
petitioner made complaint to the Collector regarding
demand of Rs.40/- per sq. ft. by respondent Society and
for allotment of plot @ Rs.2/- per sq. ft.
• Petitioner has only demanded refund of development
amount but it is wrongly mentioned that petitioner has
demanded entire amount including cost of land.
• While dealing with aspect of limitation, provisions of the
Act of 2019 have been taken into consideration instead of
the Act of 1986, which was repealed on 20.7.2020.
3. Heard learned counsel for the respective parties and perused
the order which is sought to be reviewed.
4. Indisputably, the order which is sought to be reviewed in this
petition, was unsuccessfully challenged by review petitioner
before the appellate Court in WA No.788/2024 which came to
be dismissed on 27.11.2024. This review petition is filed after
dismissal of writ appeal on merits and thus the order under
review stood merged in the order of the Division Bench. A
review is not entertainable when during pendency of or prior
to filing of review petition, the appellate court upheld the order
under review and it stood merged in the order of appellate
court.
5. In Commissioner of Income-tax, Bombay Vs. M/s Amritlal
Bhogilal and Co. AIR 1958 SC 868 Hon'ble Supreme Court
has held :
"There can be no doubt that, if an appeal is
provided against an order passed by a tribunal, the
decision of the appellate authority is the operative
decision in law. If the appellate authority modifies or
reverses the decision of the tribunal, it is obvious
that it is the appellate decision that is effective and
can be enforced. In law the position would be just
the same even if the appellate decision merely
confirms the decision of the tribunal. As a result of
the confirmation or affirmation of the decision of the
tribunal by the appellate authority the original
decision merges in the appellate decision and it is
the appellate decision alone which subsists and is
operative and capable of enforcement."
6. In case of Tamil Nadu Electricity Board and another vs. N.
Raju Reddiar and another, reported in (1997) 9 SCC 736,
Hon'ble Supreme Court has observed that when an
appeal/special leave petition is dismissed, except in rare
cases where error of law or fact is apparent on the record, no
review can be filed.
7. In Review Petition No.9/2012, parties being Anup Kumar Roy
& ors vs State of Tripura & ors and decided on 20.6.2012, the
High Court of Guahati (Agartala Bench), the question for
consideration was whether after dismissal of appeal against
the order under review, it is still open to the appellants of said
appeal to seek review of not the judgment and order passed
in writ appeal but of the judgment and order passed in petition
against which intra-Court appeal had been preferred and
dismissed. While answering said question, the High Court
dismissed review petition recording that the order passed by
the Court in writ petition stood merged into the appellate
Court and hence, review, if any, has to be sought of the
appellate judgment and not the original order passed in writ
petition. Relevant paras of the said decision are extracted
herein below:-
"3.The question, therefore, which arises for
consideration, at the very threshold of this review
petition, is: having already preferred an appeal and
the appeal having been dismissed, whether it is still
open to the appellants of the said appeal to seek
review of not the judgment and order, dated 14-11-
2011, passed in W.A. No. 66/2006, but of the
judgment and order, dated 15-9-2006, passed in Civil
Rule 400/1996, against which intra-Court appeal, as
mentioned above, had been preferred and dismissed?
14.The above aspect of the law has been succinctly
and authoritatively laid down by the Supreme Court, in
Kunhayammed and others v. State of Kerala & Anr.
(MANU/SC/0432/2000MANU/SC/0432/2000 : AIR
2000 SC 2587), in the following words :--
".......(i) Where an appeal or revision is provided
against an order passed by a Court, tribunal or any
other authority before superior forum and such
superior forum modifies, reverses or affirms the
decision put in issue before it the decision by the
sub-ordinate forum merges in the decision by the
superior forum and it is the latter, which subsists,
remains operative and is capable of enforcement in
the eye of law. (ii) The jurisdiction conferred by
Article 136 of the Constitution is divisible into two
stages. First stage is up to the disposal of prayer
for special leave to file an appeal. The second
stage commences if and when the leave to appeal
is granted and special leave petition is converted
into an appeal. (iii) Doctrine of merger is not a
doctrine of universal or unlimited application. It will
depend on the nature of jurisdiction exercised by
the superior forum and the content or subject-
matter of challenge laid or capable of being laid
shall be determinative of the applicability or
merger. The superior jurisdiction should be capable
of reversing modified or affirming the order put in
issue before it. Under Article 136 of the Constitution
the Supreme Court may reverse, modify or affirm
the judgment-decree or order appealed against
while exercising it appellate jurisdiction and not
while exercising the discretionary jurisdiction
disposing of petition for special leave to appeal.
The doctrine of merger can therefore be applied to
the former and not to the latter. (iv) An order
refusing special leave to appeal may be a non-
speaking order or a speaking one. In either case, it
does not attract the doctrine of merger. An order
refusing special leave to appeal does not stand
substituted in place of the order under challenge.
All that it means is that the Court was not inclined
to exercise its discretion so as to allow the appeal
being filed. (v) If the order, refusing leave to appeal,
is a speaking order, i.e. gives reasons for refusing
the grant of leave, then, the order has two
implications. Firstly, the statement of law contained
in the order is a declaration of law by the Supreme
Court within the meaning of Article 141 of the
Constitution. Secondly, other than the declaration
of law, whatever is stated in the order are the
findings recorded by the Supreme Court which
would bind the parties thereto and also the Court,
tribunal or authority in any proceedings subsequent
thereto by way of judicial discipline, the Supreme
Court being the Supreme Court of the country. But,
this does not amount to saying that the order of the
Court, tribunal or authority below has stood merged
in the order of the Supreme Court rejecting special
leave petition or that the order of the Supreme
Court is the only order binding as res judicata in
subsequent proceedings between the parties. (vi)
Once leave to appeal has been granted and
appellate jurisdiction of Supreme Court has been
invoked the order passed in appeal would attract
the doctrine of merger; the order may be of
reversal, modification or merely affirmation, (vii) On
an appeal having been preferred or a petition
seeking leave to appeal having been converted into
an appeal before Supreme Court the jurisdiction of
High Court to entertain a review petition is lost
thereafter as provided by sub-rule (1) of Order 47
of the C.P.C.
(Emphasis added)"
15.What emerges from the law laid down, in
Kunhayammed (MANU/SC/ 0432/ 2000MANU/ SC /
0432 /2000 : AIR 2000 SC 2587) (supra), is that where
an appeal is provided against an order passed by a
Court and the appeal is preferred, then, the decision
of the lower Court merges into the decision of the
appellate Court and it is the latter's decision, which
subsists, remains operative and is capable of
enforcement in the eyes of law.
21.......following observations of the Supreme Court,
in State of Maharashtra v. Prabhakar Bhikaji Ingle,
reported in MANU/SC/0804/ 1996MANU / SC / 0804 /
1996 : (1996) 3 SCC 463 : (AIR 1996 SC 3069), which
read as follows :
"3. It is contended for the respondent that the
dismissal of the SLP does not preclude the
Tribunal from reviewing the order since the
dismissal was a non-speaking order. We fail to
appreciate the contention of the respondent. It is
true that this Court has held that the dismissal of
SLP without a speaking order does not constitute
res judicata. The principle of res judicata is
founded on public policy that the parties cannot
be permitted to have the controversy directly or
substantially in issue between the same parties or
those claiming under the parties in the
subsequent suit in the same proceedings in the
subsequent stages cannot be raised once over. It
is a sound principle of public policy to prevent
vexation.
4. But in this case, when the self-same main order
was confirmed by this Court, the question arises
whether the Tribunal has had power under Order
47 Rule 1 CPC or any other appropriate provision
under the Tribunal acts to review the orders
passed by it and confirmed by this Court by
refusing to grant leave. We find that the exercise
of the review power is deleterious to the judicial
discipline. Once this Court has confirmed the
order passed by the Tribunal, that becomes final.
Therefore, the Tribunal cannot have any power to
review the previous order which stands merged
with the order passed by this Court."
8. Perusal of the contents of review petition would show that the
review petitioner has filed this review mainly on the ground
that the Court has committed illegality in affirming the
rejection of claim of petitioner by the District Consumers
Disputes Redressal Forum being barred by limitation, which is
maintained by the State Consumer Dispute Redressal
Commission as well as National Consumer Disputes Redresal
Commission. The grounds raised in review petition are the
same which have already been raised in writ petition, which
were duly considered by this Court, therefore, the review
cannot be filed for re-appreciation of the facts and the
grounds raised in writ petition. In fact, the instant review
petition on the grounds enumerated therein appears to be an
appeal in disguise. The grounds taken by review petitioner
are either that the finding recorded by the Court is not legally
tenable, or that the same is perverse, or that the same is
unacceptable. A judgment/order may be wrong, erroneous,
incorrect, legally untenable, etc. but nevertheless remains a
valid judgment in the eyes of law against which the only
course available for the aggrieved party is to go in appeal
against the same. Such grounds do not constitute errors of
fact or of law on the face of the record as would call for a
review. In the case of Surendra Kumar Vakil & Ors. Vs.
Chief Executive Officer, MP and Ors., reported in (2004) 10
SCC 126, Hon'ble Supreme Court has held thus:-
"10........A point that has been heard and decided
cannot form a ground for review even if assuming
that the view taken in the judgment under review is
erroneous."
9. Even, it is well settled in law that in the guise of review,
rehearing is not permissible. In order to seek review it has to
be demonstrated that order suffers from error apparent on the
face of record. The scope of review is very limited and an
order or judgment is open to review only if there is a mistake
or an error apparent on the face of record. Hon'ble Supreme
Court in case of Smt. Meera Bhanja vs Smt. Nirmala
Kumari Choudhury reported in AIR 1995 SC 455 has
observed thus:
"8. 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 v. Aribam
Pishak Sharma speaking through Chinnappa Reddy,
J. has made the following pertinent observations:
"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......."
10. In case of Shanti Conductors Pvt. Ltd. vs. Assam State
Electricity Board and others, reported in (2020) 2 SCC 677,
it was held thus:-
"25. .......The scope of review has been reiterated by
this Court from time to time. It is sufficient to refer the
judgment of this Court in Parsion Devi and Others Vs.
Sumitri Devi and Others, (1997) 8 SCC 715, wherein
in paragraph 9 following has been laid down:
"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 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 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"."
11. Keeping in mind the decisions quoted above and considering
the grounds raised by review petitioner in this review petition,
this Court is of considered view that review petitioner failed to
point any error apparent on the face of record warranting
review of the order dated 3.9.2024 and further, the order
sought to be reviewed is merged with the appellate order
passed in writ appeal. Being so, the review petition being
sans merit is liable to be and is hereby dismissed. No order
SYED
ROSHAN as to cost.
ZAMIR ALI
Digitally signed Sd/-
by SYED
ROSHAN
ZAMIR ALI
(Parth Prateem Sahu)
Judge
roshan/-
